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EXHIBIT 4.6
EXECUTION COPY
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X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
Warrants to Purchase
93,273 Shares of Common Stock
WARRANT AGREEMENT
Dated as of November 30, 1999
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Warrant Agent
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WARRANT AGREEMENT, dated as of November 30, 1999, between X'Xxxxxxxx
Industries Holdings Inc., a Delaware corporation (the "COMPANY"), and Norwest
Bank Minnesota, National Association, as warrant agent (the "WARRANT AGENT").
WHEREAS, the Company proposes to issue warrants (the "WARRANTS") to
initially purchase up to an aggregate of 93,273 shares of Common Stock, par
value $0.01 per share (the "COMMON STOCK"), of the Company (the Common Stock
issuable on exercise of the Warrants being referred to herein as the "WARRANT
SHARES"), in connection with the offering (the "OFFERING") by the Company and
X'Xxxxxxxx Industries, Inc. ("INDUSTRIES") of 100,000 Units (the "UNITS"), each
consisting of $1,000 principal amount at maturity of Industries' 13 3/8% Senior
Subordinated Notes due 2009 (the "NOTES"), one Warrant, each Warrant initially
representing the right to purchase 0.9327 Warrant Shares and one warrant to
purchase shares of the Company's series B junior preferred stock, each such
warrant initially representing the right to purchase 0.3927 shares of the
Company's series B junior preferred stock.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act in connection with the
issuance of Warrant Certificates (as defined) and other matters as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"144A GLOBAL WARRANT" means a global Warrant substantially in the form of
Exhibit A hereto bearing the Global Warrant Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such specified Person, whether through the ownership
of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the voting securities of a Person shall be deemed to
be control.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Warrant, the rules and procedures of
the Depositary, Euroclear and Cedelbank that apply to such transfer or exchange.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CEDELBANK" means Cedelbank, a limited liability company (a societe
anonyme) organized under Luxembourg law.
"CLOSING DATE" means the date hereof.
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"COMMISSION" means the Securities and Exchange Commission.
"DEPOSITARY" means, with respect to the Warrants issuable or issued in
whole or in part in global form, the Person specified in Section 3.3 hereof as
the Depositary with respect to the Warrants, and any and all successors thereto
appointed as Depositary hereunder and having become such pursuant to the
applicable provision of the Indenture.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GLOBAL WARRANTS" means, individually and collectively, each of the
Restricted Global Warrants and the Unrestricted Global Warrants, substantially,
in the form of Exhibit A hereto issued in accordance with Section 3.1(b) and 3.5
hereof.
"GLOBAL WARRANT LEGEND" means the legend set forth in Section 3.5(g)(ii),
which is required to be placed on all Global Warrants issued under this Warrant
Agreement.
"HOLDER" means a person who owns Registrable Securities.
"INDENTURE" means the indenture, dated the date hereof, among the Company,
the Guarantors set forth therein and Norwest Bank Minnesota, National
Association, as trustee relating to the Notes.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Warrant through a Participant.
"INITIAL PURCHASER" means Xxxxxx Brothers Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, which is not also a QIB.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OFFICER" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Warrant Agent in form and substance reasonably acceptable to
the Warrant Agent. The counsel may be an employee of or counsel to the Company,
any subsidiary of the Company or the Warrant Agent.
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"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedelbank, a Person who has an account with the Depositary, Euroclear or
Cedelbank, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Cedelbank).
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 3.5(g)(i)
to be placed on all Warrants issued under this Warrant Agreement except where
otherwise permitted by the provisions of this Warrant Agreement.
"PUBLIC EQUITY OFFERING" means an underwritten offering of Common Stock
pursuant to a registration statement that has been declared effective by the
Commission pursuant to the Securities Act (other than a registration statement
on Form S-8 or otherwise relating to equity securities issuable under any
employee benefit plan of the Company).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRABLE SECURITIES" shall mean the Warrants, the Warrant Shares and
any other securities issued or issuable with respect to the Warrants or the
Warrant Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that a security ceases to be a Registrable Security
when it is no longer a Transfer Restricted Security. The Registrable Securities
are entitled to the benefits of the Warrant Registration Rights Agreement.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL WARRANT" means a global Warrant in the form of
Exhibit A hereto bearing the Global Warrant Legend, the Private Placement Legend
and the Regulation S Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee.
"REGULATION S LEGEND" means the legend set forth in Section 3.5(g)(iv) to
be placed on all Registrable Securities issued pursuant to Regulation S.
"RESTRICTED DEFINITIVE WARRANT" means a Definitive Warrant bearing the
Private Placement Legend.
"RESTRICTED GLOBAL WARRANT" means a Global Warrant bearing the Private
Placement Legend.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SEPARATION DATE" means the earliest of (i) 180 days after the closing of
the Offering, (ii) the date on which an exchange offer registration statement
for the Notes is declared effective under the Securities Act, (iii) the date on
which a shelf registration statement for the Notes is declared effective under
the Securities Act, (iv) such date as Xxxxxx Brothers Inc., in its sole
discretion, shall determine and (v) in the event the Company is required to make
an offer to purchase Notes pursuant to the terms of the Indenture, the date the
Company mails notice of such offer to the holders of the Notes.
"TRANSFER RESTRICTED SECURITIES" shall mean each Warrant and Warrant Share
until the earlier to occur of (i) the date on which such Warrant or Warrant
Share has been effectively registered under the Securities Act and disposed of
in accordance with a Registration Statement covering it (and the purchasers
thereof have been issued a registered freely tradable security) and (ii) the
date on which such Warrant or Warrant Share is distributed to the public
pursuant to Rule 144 under the Securities Act.
"UNRESTRICTED GLOBAL WARRANT" means a global Warrant substantially in the
form of Exhibit A attached hereto that bears the Global Warrant Legend and that
has the "Schedule of Exchanges of Interests in the Global Warrant" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Warrants that do not bear the
Private Placement Legend.
"UNRESTRICTED DEFINITIVE WARRANT" means one or more Definitive Warrants
that do not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"WARRANT REGISTRATION RIGHTS AGREEMENT" means the registration rights
agreement, dated as of November 30, 1999, by and among the Company, the Initial
Purchaser and the other parties thereto relating to the Warrants and the Warrant
Shares.
SECTION 2. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth hereinafter in this
Agreement and the Warrant Agent hereby accepts such appointment.
SECTION 3. ISSUANCE OF WARRANTS; WARRANT CERTIFICATES.
3.1. FORM AND DATING.
(a) General.
The Warrants shall be substantially in the form of Exhibit A hereto (the
"WARRANT CERTIFICATES"). The Warrants may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Warrant shall
be dated the date of the countersignature.
The terms and provisions contained in the Warrants shall constitute, and
are hereby expressly made, a part of this Warrant Agreement. The Company and the
Warrant Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to
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be bound thereby. However, to the extent any provision of any Warrant conflicts
with the express provisions of this Warrant Agreement, the provisions of this
Warrant Agreement shall govern and be controlling.
(b) Global Warrants.
Warrants issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Warrant Legend thereon and the
"Schedule of Exchanges of Interests in the Global Warrant" attached thereto).
Warrants issued in definitive form shall be substantially in the form of Exhibit
A attached hereto (but without the Global Warrant Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Warrant" attached thereto).
Each Global Warrant shall represent such of the outstanding Warrants as shall be
specified therein and each shall provide that it shall represent the number of
outstanding Warrants from time to time endorsed thereon and that the number of
outstanding Warrants represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Warrant to reflect the amount of any increase or decrease in the
number of outstanding Warrants represented thereby shall be made by the Warrant
Agent in accordance with instructions given by the Holder thereof as required by
Section 3.5 hereof.
(c) Euroclear and Cedelbank Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedelbank" and "Customer Handbook" of Cedelbank shall be
applicable to transfers of beneficial interests in the Regulation S Global
Warrant that are held by Participants through Euroclear or Cedelbank.
3.2. EXECUTION.
An Officer shall sign the Warrants for the Company by manual or facsimile
signature.
If the Officer whose signature is on a Warrant no longer holds that office
at the time a Warrant is countersigned, the Warrant shall nevertheless be valid.
A Warrant shall not be valid until countersigned by the manual signature of
the Warrant Agent. The signature shall be conclusive evidence that the Warrant
has been properly issued under this Warrant Agreement.
The Warrant Agent shall, upon a written order of the Company signed by an
Officer (a "WARRANT COUNTERSIGNATURE ORDER"), countersign Warrants for original
issue up to the number stated in the preamble hereto.
The Warrant Agent may appoint an agent acceptable to the Company to
countersign Warrants. Such an agent may countersign Warrants whenever the
Warrant Agent may do so. Each reference in this Warrant Agreement to a
countersignature by the Warrant Agent includes a countersignature by such agent.
Such an agent has the same rights as the Warrant Agent to deal with the Company
or an Affiliate of the Company.
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3.3. WARRANT REGISTRAR.
The Company shall maintain an office or agency where Warrants may be
presented for registration of transfer or for exchange ("WARRANT REGISTRAR").
The Warrant Registrar shall keep a register of the Warrants and of their
transfer and exchange. The Company may appoint one or more co-Warrant
Registrars. The term "Warrant Registrar" includes any co-Warrant Registrar. The
Company may change any Warrant Registrar without notice to any holder. The
Company shall notify the Warrant Agent in writing of the name and address of any
agent not a party to this Warrant Agreement. If the Company fails to appoint or
maintain another entity as Warrant Registrar, the Warrant Agent shall act as
such. The Company or any of its subsidiaries may act as Warrant Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Warrants.
The Company initially appoints the Warrant Agent to act as the Warrant
Registrar with respect to the Global Warrants.
3.4. HOLDER LISTS.
The Warrant Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders. If the Warrant Agent is not the Warrant Registrar, the Company
shall promptly furnish to the Warrant Agent at such times as the Warrant Agent
may request in writing, a list in such form and as of such date as the Warrant
Agent may reasonably require of the names and addresses of the Holders.
3.5. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Warrants.
A Global Warrant may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the Depositary
or to another nominee of the Depositary, or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Warrants will be exchanged by the Company for Definitive Warrants if (i)
the Company delivers to the Warrant Agent notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Warrants (in whole but not in part) should
be exchanged for Definitive Warrants and delivers a written notice to such
effect to the Warrant Agent. Upon the occurrence of either of the preceding
events in (i) or (ii) above, Definitive Warrants shall be issued in such names
as the Depositary shall instruct the Warrant Agent. Global Warrants also may be
exchanged or replaced, in whole or in part, as provided in Sections 3.6 and 3.7
hereof. A Global Warrant may not be exchanged for another Warrant other than as
provided in this Section 3.5(a), however, beneficial interests in a Global
Warrant may be transferred and exchanged as provided in Section 3.5(b), (c) or
(f) hereof.
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(b) Transfer and Exchange of Beneficial Interests in the Global Warrants.
The transfer and exchange of beneficial interests in the Global Warrants
shall be effected through the Depositary, in accordance with the provisions of
this Warrant Agreement and the Applicable Procedures. Beneficial interests in
the Restricted Global Warrants shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Warrants also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Warrant.
Beneficial interests in any Restricted Global Warrant may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Warrant in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Warrant may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Warrant. No written orders or instructions shall be
required to be delivered to the Warrant Registrar to effect the transfers
described in this Section 3.5(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Warrants. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 3.5(b)(i) above, the
transferor of such beneficial interest must deliver to the Warrant
Registrar either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Warrant in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Warrant in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Warrant Registrar containing information
regarding the Person in whose name such Definitive Warrant shall be
registered. Upon effectiveness of the Registration Statement (as defined in
the Warrant Registration Rights Agreement) by the Company in accordance
with Section 3.5(f) hereof, the requirements of this Section 3.5(b)(ii)
shall be deemed to have been satisfied upon receipt by the Warrant
Registrar of a certification required by the Company in connection with
such Registration Statement delivered by the Holder of such beneficial
interests in the Restricted Global Warrants. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global
Warrants contained in this Agreement and the Warrants or otherwise
applicable under the Securities Act, the Warrant Agent shall adjust the
principal amount of the relevant Global Warrant(s) pursuant to Section
3.5(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Warrant. A beneficial interest in any Restricted Global Warrant may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Warrant if the transfer
complies with the requirements of Section 3.5(b)(ii) above and the Warrant
Registrar receives the following:
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(A) if the transferee will take delivery in the form of a
beneficial interest in the 000X Xxxxxx Xxxxxxx, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Warrant, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Warrant for Beneficial Interests in the Unrestricted Global Warrant.
A beneficial interest in any Restricted Global Warrant may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global
Warrant or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Warrant if the exchange
or transfer complies with the requirements of Section 3.5(b)(ii) above and:
(A) such transfer is effected pursuant to the Registration
Statement in accordance with the Warrant Registration Rights
Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Warrant, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Warrant proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Warrant, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) above at a
time when an Unrestricted Global Warrant has not yet been issued, the Company
shall issue and, upon receipt of an Warrant Countersignature Order in accordance
with Section 3.2 hereof, the Warrant Agent shall countersign one or more
Unrestricted Global Warrants in the number equal to the number of beneficial
interests transferred pursuant to subparagraph (B) above.
(c) Transfer and Exchange of Beneficial Interests for Definitive Warrants.
(i) Beneficial Interests in Restricted Global Warrants to Restricted
Definitive Warrants. If any holder of a beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for a Restricted
Definitive Warrant or to transfer such
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beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Warrant, then, upon receipt by the Warrant Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for a
Restricted Definitive Warrant, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Warrant Agent shall cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the number of
Warrants represented by the Global Warrant to be reduced by the number of
Warrants to be represented by the Definitive Warrant pursuant to Section 3.5(h)
hereof, and the Company shall execute and the Warrant Agent shall countersign
and deliver to the Person designated in the instructions a Definitive Warrant in
the appropriate amount. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.5(c) shall be registered in such name or names as the holder of such
beneficial interest shall instruct the Warrant Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Warrant
Agent shall deliver such Definitive Warrants to the Persons in whose names such
Warrants are so registered. Any Definitive Warrant issued in exchange for a
beneficial interest in a Restricted Global Warrant pursuant to this Section
3.5(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
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(ii) Beneficial Interests in Restricted Global Warrants to Unrestricted
Definitive Warrants. A holder of a beneficial interest in a Restricted Global
Warrant may exchange such beneficial interest for an Unrestricted Definitive
Warrant or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Warrant only if:
(A) such transfer is effected pursuant to the Registration Statement
in accordance with the Warrant Registration Rights Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to exchange such beneficial interest for a
Definitive Warrant that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Warrant proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a Definitive
Warrant that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Warrants to Unrestricted
Definitive Warrants. If any holder of a beneficial interest in an Unrestricted
Global Warrant proposes to exchange such beneficial interest for a Definitive
Warrant or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Warrant, then, upon satisfaction of the
conditions set forth in Section 3.5(b)(ii) hereof, the Warrant Agent shall cause
the amount of the applicable Global Warrant to be reduced accordingly pursuant
to Section 3.5(h) hereof, and the Company shall execute and the Warrant Agent
shall countersign and deliver to the Person designated in the instructions a
Definitive Warrant in the appropriate principal amount. Any Definitive Warrant
issued in exchange for a beneficial interest pursuant to this Section
3.5(c)(iii) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Warrant Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Warrant Agent shall deliver such
Definitive Warrants to the Persons in whose names such Warrants are so
registered. Any Definitive Warrant issued in exchange for a beneficial interest
pursuant to this Section 3.5(c)(iii) shall not bear the Private Placement
Legend.
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(d) Transfer and Exchange of Definitive Warrants for Beneficial Interests.
(i) Restricted Definitive Warrants to Beneficial Interests in Restricted
Global Warrants. If any Holder of a Restricted Definitive Warrant proposes to
exchange such Warrant for a beneficial interest in a Restricted Global Warrant
or to transfer such Restricted Definitive Warrants to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Warrant, then, upon receipt by the Warrant Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Warrant proposes to
exchange such Warrant for a beneficial interest in a Restricted Global
Warrant, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Warrant is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof;
(C) if such Restricted Definitive Warrant is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Warrant is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Warrant is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Warrant is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Warrant is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Warrant Agent shall cancel the Restricted Definitive Warrant, increase or
cause to be increased the amount of, in the case of clause (A) above, the
appropriate Restricted Global Warrant, in the case of clause (B) above, the 000X
Xxxxxx Xxxxxxx, in the case of clause (C) above, the Regulation S Global
Warrant.
(ii) Restricted Definitive Warrants to Beneficial Interests in Unrestricted
Global Warrants. A Holder of a Restricted Definitive Warrant may exchange such
Warrant for a
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beneficial interest in an Unrestricted Global Warrant or transfer such
Restricted Definitive Warrant to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Warrant only if:
(A) such transfer is effected pursuant to the Registration Statement
in accordance with the Registration Rights Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the Holder of such Definitive Warrants proposes to
exchange such Warrants for a beneficial interest in the Unrestricted
Global Warrant, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Warrants proposes to
transfer such Warrants to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Warrant,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Warrant
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Warrant Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
3.5(d)(ii), the Warrant Agent shall cancel the Definitive Warrants and increase
or cause to be increased the aggregate principal amount of the Unrestricted
Global Warrant.
(iii) Unrestricted Definitive Warrants to Beneficial Interests in
Unrestricted Global Warrants. A Holder of an Unrestricted Definitive Warrant may
exchange such Warrant for a beneficial interest in an Unrestricted Global
Warrant or transfer such Definitive Warrants to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Warrant
at any time. Upon receipt of a request for such an exchange or transfer, the
Warrant Agent shall cancel the applicable Unrestricted Definitive Warrant and
increase or cause to be increased the amount of one of the Unrestricted Global
Warrants.
If any such exchange or transfer from a Definitive Warrant to a beneficial
interest is effected pursuant to subparagraphs (ii)(B) or (iii) above at a time
when an Unrestricted Global Warrant has not yet been issued, the Company shall
issue and, upon receipt of an Warrant Countersignature Order in accordance with
Section 3.2 hereof, the Warrant Agent shall countersign one or more Unrestricted
Global Warrants in the number equal to the number of beneficial interests of
Definitive Warrants so transferred.
(e) Transfer and Exchange of Definitive Warrants for Definitive Warrants.
Upon request by a Holder of Definitive Warrants and such Holder's
compliance with the provisions of this Section 3.5(e), the Warrant Registrar
shall register the transfer or exchange of
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Definitive Warrants. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Warrant Registrar the
Definitive Warrants duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Warrant Registrar duly executed by such
Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 3.5(e).
(i) Restricted Definitive Warrants to Restricted Definitive Warrants.
Any Restricted Definitive Warrant may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Warrant if the Warrant Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Definitive Warrants to Unrestricted Definitive
Warrants. Any Restricted Definitive Warrant may be exchanged by the Holder
thereof for an Unrestricted Definitive Warrant or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Warrant if:
(A) any such transfer is effected pursuant to the Registration
Statement in accordance with the Warrant Registration Rights
Agreement; or
(B) the Warrant Registrar receives the following:
(1) if the Holder of such Restricted Definitive Warrants
proposes to exchange such Warrants for an Unrestricted Definitive
Warrant, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Warrants
proposes to transfer such Warrants to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Warrant, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Warrant Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such exchange
or transfer is in compliance with the Securities Act and that the
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restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Warrants to Unrestricted Definitive Warrants.
A Holder of Unrestricted Definitive Warrants may transfer such Warrants to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Warrant. Upon receipt of a request to register such a transfer, the Warrant
Registrar shall register the Unrestricted Definitive Warrants pursuant to the
instructions from the Holder thereof.
(f) Registration Statement.
Upon the effectiveness of the Registration Statement and sales of Warrants
in connection therewith in accordance with the Warrant Registration Rights
Agreement, the Company shall issue and, upon receipt of a Warrant
Countersignature Order in accordance with Section 3.2, the Warrant Agent shall
countersign (i) one or more Unrestricted Global Warrants in an amount equal to
the amount of the beneficial interests in the Restricted Global Warrants sold
under such Registration Statement and (ii) Definitive Warrants in an amount
equal to the amount of the beneficial interests of the Restricted Definitive
Warrants sold under such Registration Statement. Concurrently with the issuance
of such Warrants, the Warrant Agent shall cause the amount of the applicable
Restricted Global Warrants to be reduced accordingly, and the Company shall
execute and the Warrant Agent shall countersign and deliver to the Persons
designated by the Holders of Definitive Warrants so accepted Definitive Warrants
in the appropriate amount.
(g) Legends.
The following legends shall appear on the face of all Global Warrants and
Definitive Warrants issued under this Warrant Agreement unless specifically
stated otherwise in the applicable provisions of this Warrant Agreement.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Warrant
and each Definitive Warrant (and all Warrants issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE WARRANT AGREEMENT PURSUANT TO WHICH THIS SECURITY IS ISSUED) AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
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(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A FOREIGN PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Each Global Warrant and each Definitive Warrant (and all Warrants
issued in exchange therefor or substitution thereof) shall bear the legend
(the "Transfer Restriction Legend") in the following form:
"THIS WARRANT AND THE WARRANT SHARES UNDERLYING THIS WARRANT ARE ALSO
SUBJECT TO CERTAIN TRANSFER AND OTHER RESTRICTIONS CONTAINED IN A
STOCKHOLDERS AGREEMENT AND A REGISTRATION RIGHTS AGREEMENT, EACH DATED
NOVEMBER 30, 1999. COPIES OF THE STOCKHOLDERS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF UPON
WRITTEN REQUEST TO THE COMPANY OR THE WARRANT AGENT."
(C) Notwithstanding the foregoing, any Global Warrant or Definitive
Warrant issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 3.5 (and all
Warrants issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) Global Warrant Legend. Each Global Warrant shall bear a legend in
substantially the following form:
"THIS GLOBAL WARRANT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE WARRANT
AGREEMENT GOVERNING THIS WARRANT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE WARRANT AGENT MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 3.5 OF THE WARRANT AGREEMENT, (II) THIS
GLOBAL WARRANT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
3.5(a) OF THE WARRANT AGREEMENT, (III) THIS GLOBAL WARRANT MAY BE DELIVERED TO
THE WARRANT AGENT FOR CANCELLATION PURSUANT TO SECTION 3.8 OF THE WARRANT
AGREEMENT AND (IV) THIS GLOBAL WARRANT MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
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(iii) Unit Legend. Each Warrant issued prior to the Separation Date shall
bear a legend in substantially the following form:
"THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF
AN ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL
AMOUNT OF THE 13 3/8% SENIOR SUBORDINATED NOTES DUE 2009 OF X'XXXXXXXX
INDUSTRIES, INC. (THE "NOTES"), ONE WARRANT (THE "COMMON WARRANTS") INITIALLY
ENTITLING THE HOLDER THEREOF TO PURCHASE 0.9327 SHARES OF COMMON STOCK AND ONE
WARRANT (THE "PREFERRED WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE 0.3927 SHARES OF SERIES B JUNIOR PREFERRED STOCK, IN EACH CASE WITH A
PAR VALUE OF $0.01 PER SHARE, OF X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS AFTER THE CLOSING OF THE
OFFERING OF THE UNITS, (ii) THE DATE ON WHICH An exchange offer REGISTRATION
STATEMENT FOR THE NOTES IS DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (Iii)
THE DATE ON WHICH A SHELF REGISTRATION STATEMENT for THE NOTES IS DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (iV) SUCH DATE AS xxxxxx brothers inc., IN
ITS SOLE DISCRETION, SHALL DETERMINE AND (V) IN THE EVENT THE COMPANY IS
REQUIRED TO PURCHASE NOTES PURSUANT TO the terms OF THE INDENTURE GOVERNING THE
NOTES, THE DATE THE COMPANY MAILS NOTICE OF SUCH OFFER TO THE HOLDERS OF THE
NOTES. THE WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER
WITH, THE NOTES."
(iv) Regulation S. Legend. Each Warrant that is a Registrable Security and
issued pursuant to Regulation S shall bear the following legend on the fact
thereof:
"THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT AND THE WARRANT MAY NOT BE EXERCISED BY
OR ON BEHALF OF ANY U.S. PERSON UNLESS REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. IN ORDER TO EXERCISE THIS WARRANT, THE HOLDER MUST
FURNISH TO THE COMPANY AND THE WARRANT AGENT EITHER (A) A WRITTEN CERTIFICATION
THAT IT IS NOT A U.S. PERSON AND THE WARRANT IS NOT BEING EXERCISED ON BEHALF OF
A U.S. PERSON OR (B) A WRITTEN OPINION OF COUNSEL TO THE EFFECT THAT THE
SECURITIES DELIVERED UPON EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TERMS IN THIS LEGEND HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
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(h) Cancellation and/or Adjustment of Global Warrants.
At such time as all beneficial interests in a particular Global Warrant
have been exercised or exchanged for Definitive Warrants or a particular Global
Warrant has been exercised, redeemed, repurchased or canceled in whole and not
in part, each such Global Warrant shall be returned to or retained and canceled
by the Warrant Agent in accordance with Section 3.8 hereof. At any time prior to
such cancellation, if any beneficial interest in a Global Warrant is exercised
or exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Warrant or for Definitive
Warrants, the amount of Warrants represented by such Global Warrant shall be
reduced accordingly and an endorsement shall be made on such Global Warrant by
the Warrant Agent or by the Depositary at the direction of the Warrant Agent to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Warrant, such other Global Warrant shall
be increased accordingly and an endorsement shall be made on such Global Warrant
by the Warrant Agent or by the Depositary at the direction of the Warrant Agent
to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Warrant Agent shall countersign Global Warrants and
Definitive Warrants upon the Company's order or at the Warrant Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Warrant or to a holder of a Definitive Warrant for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith.
(iii) All Global Warrants and Definitive Warrants issued upon any
registration of transfer or exchange of Global Warrants or Definitive
Warrants shall be the duly authorized, executed and issued warrants for
Common Stock of the Company, not subject to any preemptive rights, and
entitled to the same benefits under this Warrant Agreement, as the Global
Warrants or Definitive Warrants surrendered upon such registration of
transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer of
any Warrant, the Warrant Agent, and the Company may deem and treat the
Person in whose name any Warrant is registered as the absolute owner of
such Warrant for all purposes and none of the Warrant Agent, or the Company
shall be affected by notice to the contrary.
(v) The Warrant Agent shall countersign Global Warrants and Definitive
Warrants in accordance with the provisions of Section 3.2 hereof.
(j) Facsimile Submissions to Warrant Agent.
All certifications, certificates and Opinions of Counsel required to be
submitted to the Warrant Registrar pursuant to this Section 3.5 to effect a
registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any certificates
and/or certifications delivered to the Warrant Registrar pursuant to this
Section 3.5, the Warrant Registrar's
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duties shall be limited to confirming that any such certifications and
certificates delivered to it are in the form of Exhibits B and C attached
hereto. The Warrant Registrar shall not be responsible for confirming the truth
or accuracy of representations made in any such certifications or certificates.
As to any Opinions of Counsel delivered pursuant to this Section 3.5, the
Warrant Registrar may rely upon, and be fully protected in relying upon, such
opinions.
3.6. REPLACEMENT WARRANTS.
If any mutilated Warrant is surrendered to the Warrant Agent or the Company
and the Warrant Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Warrant, the Company shall issue and the Warrant Agent,
upon receipt of a Warrant Countersignature Order, shall countersign a
replacement Warrant if the Warrant Agent's requirements are met. If required by
the Warrant Agent or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Warrant Agent and the Company
to protect the Company, the Warrant Agent, any Agent and any agent for purposes
of the countersignature from any loss that any of them may suffer if a Warrant
is replaced. The Company may charge for its expenses in replacing a Warrant.
Every replacement Warrant is an additional warrant of the Company and shall
be entitled to all of the benefits of this Warrant Agreement equally and
proportionately with all other Warrants duly issued hereunder.
3.7. TEMPORARY WARRANTS.
Until certificates representing Warrants are ready for delivery, the
Company may prepare and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall issue temporary Warrants. Temporary Warrants shall
be substantially in the form of certificated Warrants but may have variations
that the Company considers appropriate for temporary Warrants and as shall be
reasonably acceptable to the Warrant Agent. Without unreasonable delay, the
Company shall prepare and the Warrant Agent shall countersign definitive
Warrants in exchange for temporary Warrants.
Holders of temporary Warrants shall be entitled to all of the benefits of
this Warrant Agreement.
3.8. CANCELLATION.
Subject to Section 3.5(h) hereof, the Company at any time may deliver
Warrants to the Warrant Agent for cancellation. The Warrant Registrar and
Warrant Paying Agent shall forward to the Warrant Agent any Warrants surrendered
to them for registration of transfer, exchange or exercise. The Warrant Agent
and no one else shall cancel all Warrants surrendered for registration of
transfer, exchange, exercise, replacement or cancellation and shall destroy
canceled Warrants (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Warrants shall be
delivered to the Company. The Company may not issue new Warrants to replace
Warrants that have been exercised or that have been delivered to the Warrant
Agent for cancellation.
SECTION 4. SEPARATION OF WARRANTS; TERMS OF WARRANTS; EXERCISE OF WARRANTS.
(a) The Notes and Warrants will not be separately transferable until the
Separation Date. Subject to the terms of this Agreement, each Warrant holder
shall have the right, which may be
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exercised during the period commencing at the opening of business on the
Separation Date and until 5:00 p.m., New York City time on October 15, 2009 (the
"EXERCISE PERIOD"), to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the holder may at the time be entitled to
receive on exercise of such Warrants and payment of the exercise price (the
"EXERCISE PRICE") (i) by tendering Notes having an aggregate principal amount at
maturity, plus accrued and unpaid interest, if any, thereon to the date of
exercise equal to the Exercise Price then in effect for such Warrant Shares or
(ii) by tendering Warrants as set forth below or (iii) any combination of Notes
and Warrants; provided that holders shall be able to exercise their Warrants
only if a registration statement relating to the Warrant Shares is then in
effect, or the exercise of such Warrants is exempt from the registration
requirements of the Securities Act, and such securities are qualified for sale
or exempt from qualification under the applicable securities laws of the states
in which the various holders of the Warrants or other persons to whom it is
proposed that the Warrant Shares be issued on exercise of the Warrants reside.
Each holder may exercise its right, during the Exercise Period, to receive
Warrant Shares on a net basis, such that, without the exchange of any funds, the
holder will receive such number of Warrant Shares equal to the product of (A)
the number of Warrant Shares for which such Warrant is exercisable as of the
date of exercise (if the Exercise Price were being paid in cash) and (B) the
Cashless Exercise Ratio. The Cashless Exercise Ratio shall equal a fraction the
numerator of which is the Market Value (as defined below) per share of Common
Stock minus the Exercise Price per share as of the date of exercise and the
denominator of which is the Market Value per share on the date of exercise. Each
Warrant not exercised prior to 5:00 p.m., New York City time, on October 15,
2009 (the "EXPIRATION DATE") shall become void and all rights thereunder and all
rights in respect thereof under this agreement shall cease as of such time. No
adjustments as to dividends will be made upon exercise of the Warrants.
The "MARKET VALUE" per share of Common Stock as of any date shall equal (i)
if Common Stock is primarily traded on a securities exchange, the last sale
price on such securities exchange on the trading day immediately prior to the
date of determination, or if no sale occurred on such day, the mean between the
closing "bid" and "asked" prices on such day, (ii) if the principal market for
Common Stock is in the over-the-counter market, the closing sale price on the
trading day immediately prior to the date of the determination, as published by
the National Association of Securities Dealers Automated quotation System or
similar organization, or if such price is not so published on such day, the mean
between the closing "bid" and "asked" prices, if available, on such day, which
prices may be obtained from any reputable pricing service, broker or dealer, and
(iii) if neither clause (i) nor clause (ii) is applicable, the fair market value
on the date of determination of Common Stock as determined in good faith by the
Board of Directors of the Company.
(b) In order to exercise all or any of the Warrants represented by a
Warrant Certificate, (i) in the case of Definitive Warrants, the holder thereof
must surrender for exercise the Warrant Certificate to the Company at the office
of the Warrant Agent at its corporate trust office set forth in Section 15
hereof, (ii) in the case of a book-entry interest in a Global Warrant, the
exercising Participant whose name appears on a securities position listing of
the Depositary as the holder of such book-entry interest must comply with the
Depositary's procedures relating to the exercise of such book-entry interest in
such Global Warrant and (iii) in the case of both Global Warrants and Definitive
Warrants, the holder thereof or the Participant, as applicable, must deliver to
the Company at the office of the Warrant Agent the form of election to purchase
on the reverse thereof duly filled in and signed, which signature shall be
medallion guaranteed by an institution which is a member of a Securities
Transfer Association recognized signature guarantee program, and upon payment to
the Warrant Agent for the account of the Company of the Exercise Price, which is
set forth in the form of Warrant Certificate attached hereto as Exhibit A, as
adjusted as herein provided, for the number of Warrant
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Shares in respect of which such Warrants are then exercised. Payment of the
aggregate Exercise Price shall be made (i) by tendering Notes in the manner
provided in Section 4(a) hereof, (ii) by tendering Warrants in the manner
provided in Section 4(a) hereof or (iii) a combination of (i) and (ii).
(c) Subject to the provisions of Section 5 hereof, upon compliance with
clause (b) above, the Warrant Agent shall deliver or cause to be delivered with
all reasonable dispatch, to or upon the written order of the holder and in such
name or names as the Warrant holder may designate, a certificate or certificates
for the number of whole Warrant Shares issuable upon the exercise of such
Warrants or other securities or property to which such holder is entitled
hereunder, together with cash as provided in Section 9 hereof; provided that if
any consolidation, merger or lease or sale of assets is proposed to be effected
by the Company as described in Section 8(l) hereof, or a tender offer or an
exchange offer for shares of Common Stock shall be made, upon such surrender of
Warrants and payment of the Exercise Price as aforesaid, the Warrant Agent
shall, as soon as possible, but in any event not later than two business days
thereafter, deliver or cause to be delivered the full number of Warrant Shares
issuable upon the exercise of such Warrants in the manner described in this
sentence or other securities or property to which such holder is entitled
hereunder, together with cash as provided in Section 9 hereof. Such certificate
or certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants and payment of
the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part. If less than all the
Warrants represented by a Warrant Certificate are exercised, such Warrant
Certificate shall be surrendered and a new Warrant Certificate of the same tenor
and for the number of Warrants which were not exercised shall be executed by the
Company and delivered to the Warrant Agent and the Warrant Agent shall
countersign the new Warrant Certificate, registered in such name or names as may
be directed in writing by the holder, and shall deliver the new Warrant
Certificate to the Person or Persons entitled to receive the same.
(e) All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall then
be disposed of by the Warrant Agent in accordance with its standard practices.
The Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all monies received by the Warrant
Agent for the purchase of the Warrant Shares through the exercise of such
Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the holders during
normal business hours at its office. The Company shall supply the Warrant Agent
from time to time with such numbers of copies of this Agreement as the Warrant
Agent may request.
SECTION 5. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issue of any Warrant Certificates or
any certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such Warrant Certificates
unless or until the person or persons requesting the issuance
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thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 6. RESERVATION OF WARRANT SHARES.
(a) The Company will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of Warrants, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise of all outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the Common Stock
(the "TRANSFER AGENT") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from
time to time from such Transfer Agent the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the terms of this
Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in Section 9 hereof. The Company will
furnish such Transfer Agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each holder pursuant to Section 10
hereof.
(c) Before taking any action which would cause an adjustment pursuant to
Section 8 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
(d) The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issuance thereof.
SECTION 7. OBTAINING STOCK EXCHANGE LISTINGS.
The Company will from time to time take all action which may be necessary
so that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on the principal securities exchanges, automated
quotation systems or other markets within the United States of America, if any,
on which other shares of Common Stock are then listed, if any.
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE.
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 8. For purposes of this
Section 8, "COMMON STOCK" means shares now or hereafter authorized of
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any class of common stock of the Company and any other stock of the Company,
however designated, that has the right (subject to any prior rights of any class
or series of preferred stock) to participate in any distribution of the assets
or earnings of the Company without limit as to per share amount.
(a) Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock, (ii) subdivides its outstanding shares of
Common Stock into a greater number of shares, (iii) combines its outstanding
shares of Common Stock into a smaller number of shares, (iv) makes a
distribution on its Common Stock in shares of its capital stock other than
Common Stock or (v) issues by reclassification of its Common Stock any shares of
its capital stock, then the Exercise Price in effect immediately prior to such
action shall be proportionately adjusted so that the holder of any Warrant
thereafter exercised may receive the aggregate number and kind of shares of
capital stock of the Company which he would have owned immediately following
such action if such Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification. If, after an
adjustment, a holder of a Warrant upon exercise of it may receive shares of two
or more classes of capital stock of the Company, the Company shall determine, in
good faith, the allocation of the adjusted Exercise Price between the classes of
capital stock. After such allocation, the exercise privilege and the Exercise
Price of each class of capital stock shall thereafter be subject to adjustment
on terms comparable to those applicable to Common Stock in this Section 8. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all holders
of its Common Stock entitling them for a period expiring within 45 days after
the record date mentioned below to purchase shares of Common Stock at a price
per share less than the Fair Value (as defined herein) per share on that record
date, the Exercise Price shall be adjusted in accordance with the formula:
O + N x P
---------
E' = E x M
-------------------------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on
the record date.
N = the number of additional shares of Common
Stock issued pursuant to such rights,
options or warrants.
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P = the aggregate price per share of the additional
shares.
M = the Fair Value per share of Common Stock on the
record date.
The adjustment shall be made successively whenever any such rights, options
or warrants are issued and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the rights,
options or warrants. If at the end of the period during which such rights,
options or warrants are exercisable, not all rights, options or warrants shall
have been exercised, the Exercise Price shall be immediately readjusted to what
it would have been if "N" in the above formula had been the number of shares
actually issued.
(c) Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock any of its
assets (including cash), debt securities, preferred stock or any rights or
warrants to purchase debt securities, preferred stock, assets (including cash)
or other securities of the Company, the Exercise Price shall be adjusted in
accordance with the formula:
M - F
E' = E x -----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the Fair Value per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date
of the debt securities, preferred stock,
assets, securities, rights or warrants to be
distributed in respect of one share of
Common Stock as determined in good faith by
the Board of Directors of the Company (the
"Board of Directors").
The adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution.
This Section 8(c) does not apply to cash dividends or cash distributions
paid out of consolidated current or retained earnings as shown on the books of
the Company prepared in accordance with generally accepted accounting
principles. Also, this Section 8(c) does not apply to rights, options or
warrants referred to in Section 8(b) hereof.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock for a consideration per share
less than the Fair Value per share on the date the Company fixes the offering
price of such additional shares, the Exercise Price shall be adjusted in
accordance with the formula:
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P
-----
E' = E x O + M
---------------
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the Fair Value per share on the date of issuance of such
additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (a), (b) and (c)
of this Section 8,
(2) the exercise of Warrants, or the conversion or exchange of other
securities convertible or exchangeable for Common Stock the issuance of
which caused an adjustment to be made under Section 8(e),
(3) Common Stock issued to the Company's employees, directors or
consultants (or any of the foregoing of its subsidiaries) under bona fide
employee benefit plans adopted by the Board of Directors and approved by
the holders of Common Stock when required by law, if such Common Stock
would otherwise be covered by this subsection (d) (but only to the extent
that the aggregate number of shares excluded hereby and issued after the
date of this Warrant Agreement shall not exceed 10% of the Common Stock
outstanding at the time of the adoption of each such plan, exclusive of
anti-dilution adjustments thereunder),
(4) Common Stock issued to shareholders of any person which merges
into the Company, or with a subsidiary of the Company, in proportion to
their stock holdings of such person immediately prior to such merger, upon
such merger, provided that if such person is an Affiliate of the Company,
the Board of Directors shall have obtained a fairness opinion from a
nationally recognized investment banking, appraisal or valuation firm,
which is not an Affiliate
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of the Company, stating that the consideration received in such merger is
fair to the Company from a financial point of view,
(5) the issuance of shares of Common Stock pursuant to rights, options
or warrants which were originally issued in a Non-Affiliate Sale (as
defined below) together with one or more other securities as part of a unit
at a price per unit, or
(6) the issuance of shares of Common Stock issuable upon exercise of
the warrants issued pursuant to the Securities Purchase Agreement, dated
November 30, 1999, between the Company and Bruckmann, Xxxxxx, Xxxxxxxx &
Co. II, L.P.
(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible into or exchangeable for
Common Stock (other than securities issued in transactions described in
subsections (a), (b) and (c) of this Section 8) for a consideration per share of
Common Stock initially deliverable upon conversion or exchange of such
securities less than the Fair Value per share on the date of issuance of such
securities, the Exercise Price shall be adjusted in accordance with this
formula:
P
-----
O + M
E' = E x ----------------
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the Fair Value per share on the date of issuance of such
securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or
exchange rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after
such issuance.
If all of the Common Stock deliverable upon conversion or exchange of such
securities have not been issued when such securities are no longer outstanding,
then the Exercise Price shall promptly be readjusted to the Exercise Price which
would then be in effect had the adjustment upon the issuance of such securities
been made on the basis of the actual number of shares of Common Stock issued
upon conversion or exchange of such securities.
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This subsection (e) does not apply to convertible securities issued to
shareholders of any person which merges into the Company, or with a subsidiary
of the Company, in proportion to their stock holdings of such person immediately
prior to such merger, upon such merger, provided that if such person is an
Affiliate of the Company, the Board of Directors shall have obtained a fairness
opinion from a nationally recognized investment banking, appraisal or valuation
firm, which is not an Affiliate of the Company, stating that the consideration
received in such merger is fair to the Company from a financial point of view.
(f) Consideration Received.
For purposes of any computation respecting consideration received pursuant
to subsections (d), and (e) of this Section 8, the following shall apply:
(1) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided that in no
case shall any deduction be made for any commissions, discounts or other
expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as determined
in good faith by the Board of Directors (irrespective of the accounting
treatment thereof), whose determination shall be conclusive, and described
in a Board resolution which shall be filed with the Warrant Agent;
(3) in the case of the issuance of securities convertible into or
exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by the Company for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by the Company upon the conversion or exchange thereof
(the consideration in each case to be determined in the same manner as
provided in clauses (1) and (2) of this subsection); and
(4) in the case of the issuance of shares of Common Stock pursuant to
rights, options or warrants which rights, options or warrants were
originally issued together with one or more other securities as part of a
unit at a price per unit, the consideration shall be deemed to be the fair
value of such rights, options or warrants at the time of issuance thereof
as determined in good faith by the Board of Directors whose determination
shall be conclusive and described in a Board resolution which shall be
filed with the Warrant Agent plus the additional minimum consideration, if
any, to be received by the Company upon the exercise, conversion or
exchange thereof (as determined in the same manner as provided in clauses
(1) and (2) of this subsection).
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(g) Fair Value.
In Sections 8 (b), (c), (d) and (e) and Section 9 hereof, the "FAIR VALUE"
per security at any date of determination shall be (1) in connection with a sale
by the Company to a party that is not an Affiliate of the Company in an
arm's-length transaction (a "NON-AFFILIATE SALE"), the price per security at
which such security is sold and (2) in connection with any sale by the Company
to an Affiliate of the Company, (a) the last price per security at which such
security was sold in a Non-Affiliate Sale within the three-month period
preceding such date of determination or (b) if clause (a) is not applicable, the
fair market value of such security determined in good faith by (i) a majority of
the Board of Directors, including a majority of the Disinterested Directors, and
approved in a Board resolution delivered to the Warrant Agent or (ii) a
nationally recognized investment banking, appraisal or valuation firm, which is
not an Affiliate of the Company, in each case, taking into account, among all
other factors deemed relevant by the Board of Directors or such investment
banking, appraisal or valuation firm, the trading price and volume of such
security on any national securities exchange or automated quotation system on
which such security is traded. Notwithstanding the foregoing, any sale to Xxxxxx
Brothers Inc. (or any successor thereto) pursuant to an underwritten public
offering registered under the Securities Act shall be deemed to be and treated
as a Non-Affiliate Sale.
For purposes of this Section 8(g), "DISINTERESTED DIRECTOR" means, in
connection with any issuance of securities that gives rise to a determination of
the Fair Value thereof, each member of the Board of Directors who is not an
officer, employee, director or other Affiliate of the party to whom the Company
is proposing to issue the securities giving rise to such determination.
For purposes of this Section 8(g), "AFFILIATE" of any specified Person
means (A) any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person and (B)
any director, officer or employee of such specified person. For purposes of this
definition "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
(h) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 8 shall be made
to the nearest one-one thousandth of a cent or to the nearest one-one thousandth
of a share, as the case may be, it being understood that no such rounding shall
be made under subsection (p).
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to Section 8(a), (b),
(c), (d), (e) or (f) hereof, if Warrant holders are to participate (without
being required to exercise their Warrants) in the transaction on a basis and
with notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. No adjustment need be made for (i) rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or interest or
(ii) a change in the par value or no par value of the Common
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Stock. To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue on the cash.
(j) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 10 hereof.
(k) Notice of Certain Transactions.
If (i) the Company takes any action that would require an adjustment in the
Exercise Price pursuant to Section 8(a), (b), (c), (d), (e) or (f) hereof and if
the Company does not arrange for Warrant holders to participate pursuant to
Section 8(i) hereof, (ii) the Company takes any action that would require a
supplemental Warrant Agreement pursuant to Section 8(l) hereof or (iii) there is
a liquidation or dissolution of the Company, then the Company shall mail to
Warrant holders a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease, liquidation or
dissolution. The Company shall mail the notice at least 15 days before such
date. Failure to mail the notice or any defect in it shall not affect the
validity of the transaction.
(l) Reorganization of Company.
Immediately after the date hereof, if the Company consolidates or merges
with or into, or transfers or leases all or substantially all its assets to, any
person, upon consummation of such transaction the Warrants shall automatically
become exercisable for the kind and amount of securities, cash or other assets
which the holder of a Warrant would have owned immediately after the
consolidation, merger, transfer or lease if the holder had exercised the Warrant
immediately before the effective date of the transaction. Concurrently with the
consummation of such transaction, the corporation formed by or surviving any
such consolidation or merger if other than the Company, or the person to which
such sale or conveyance shall have been made, shall enter into (i) a
supplemental Warrant Agreement so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section 8(l) and (ii) a supplement to the
Warrant Registration Rights Agreement providing for the assumption of the
Company's obligations thereunder. The successor Company shall mail to Warrant
holders a notice describing the supplemental Warrant Agreement and Warrant
Registration Rights Agreement. If the issuer of securities deliverable upon
exercise of Warrants under the supplemental Warrant Agreement is an affiliate of
the formed, surviving, transferee or lessee corporation, that issuer shall join
in the supplemental Warrant Agreement and Warrant Registration Rights Agreement.
If this Section 8(l) applies, Sections 8(a), (b), (c), (d), (e) and (f) hereof
do not apply.
(m) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to Section 8(a), (c), (d), (e), (f), (g), (h) or (i) hereof is
conclusive.
(n) Warrant Agent's Disclaimer.
The Warrant Agent has no duty to determine when an adjustment under this
Section 8 should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under Section 8(l) hereof are
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correct. The Warrant Agent makes no representation as to the validity or value
of any securities or assets issued upon exercise of Warrants. The Warrant Agent
shall not be responsible for the Company's failure to comply with this
Section 8.
(o) When Issuance or Payment May Be Deferred.
In any case in which this Section 8 shall require that an adjustment in the
Exercise Price be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event (i) issuing to the
holder of any Warrant exercised after such record date the Warrant Shares and
other capital stock of the Company, if any, issuable upon such exercise over and
above the Warrant Shares and other capital stock of the Company, if any,
issuable upon such exercise on the basis of the Exercise Price and (ii) paying
to such holder any amount in cash in lieu of a fractional share pursuant to
Section 9 hereof; provided that the Company shall deliver to such holder a due
xxxx or other appropriate instrument evidencing such holder's right to receive
such additional Warrant Shares, other capital stock and cash upon the occurrence
of the event requiring such adjustment.
(p) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 8, each
Warrant outstanding prior to the making of the adjustment in the Exercise Price
shall thereafter evidence the right to receive upon payment of the adjusted
Exercise Price that number of shares of Common Stock (calculated to the nearest
hundredth) obtained from the following formula:
N' = N x E
---
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(q) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number or kind
of shares purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
SECTION 9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Warrant Shares on the
exercise of Warrants. If more than one Warrant shall be presented for exercise
in full at the same time by the same
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holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 9,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the Fair Value per Warrant Share,
as determined on the day immediately preceding the date the Warrant is presented
for exercise, multiplied by such fraction, computed to the nearest whole U.S.
cent.
SECTION 10. NOTICES TO WARRANT HOLDERS.
(a) Upon any adjustment of the Exercise Price pursuant to Section 8 hereof,
the Company shall promptly thereafter (i) cause to be filed with the Warrant
Agent a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Directors of the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such calculations are based and setting forth the number of
Warrant Shares (or portion thereof) issuable after such adjustment in the
Exercise Price, upon exercise of a Warrant and payment of the adjusted Exercise
Price, which certificate shall be conclusive evidence of the correctness of the
matters set forth therein, and (ii) cause to be given to each of the registered
holders of Warrants at the address appearing on the Warrant register for each
such registered holder written notice of such adjustments by first-class mail,
postage prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 10.
(b) In case:
(i) the Company shall authorize the issuance to all holders of shares
of Common Stock of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of any other subscription rights or warrants;
(ii) the Company shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other
than dividends or cash distributions paid out of consolidated current or
retained earnings as shown on the books of the Company prepared in
accordance with generally accepted accounting principles or dividends
payable in shares of Common Stock or distributions referred to in Section
10(a) hereof);
(iii) of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of
Common Stock issuable upon exercise of the Warrants (other than a change in
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or a tender offer
or exchange offer for shares of Common Stock;
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company proposes to take any action (other than actions of the
character described in Section 8(a) hereof) which would require an
adjustment of the Exercise Price pursuant to Section 8 hereof;
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then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered holders of Warrants at his address
appearing on the Warrant register, at least 20 days (or 10 days in any case
specified in clauses (i) or (ii) above) prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (x)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, (y) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (z) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give the notice required
by this Section 10 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action.
(c) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders of Warrants the
right to vote or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
SECTION 11. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(a) Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 13 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in case
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
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SECTION 12. WARRANT AGENT.
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution of this
Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement. The Company shall indemnify
the Warrant Agent against any and all losses, liabilities or expenses incurred
by it arising out of or in connection with the acceptance or administration of
its duties under this Warrant Agreement, including the costs and expenses of
enforcing this Warrant Agreement against the Company and defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Warrant Agent
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Warrant Agent to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Warrant Agent shall cooperate in the defense. The Warrant Agent may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(f) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrants shall furnish
the Warrant Agent with reasonable security and indemnity for any costs and
expenses which may be incurred, but this provision shall not affect the power of
the
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Warrant Agent to take such action as it may consider proper, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent and any recovery of judgment shall be for the ratable benefit
of the registered holders of the Warrants, as their respective rights or
interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee
of it, may buy, sell or deal in any of the Warrants or other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. The Warrant
Agent shall not be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or with respect to whether
any such Warrant Shares or other securities will when issued be validly issued
and fully paid and nonassessable, and makes no representation with respect
thereto.
SECTION 13. CHANGE OF WARRANT AGENT.
The Warrant Agent may resign at any time by so notifying the Company. If
the Warrant Agent shall resign or become incapable of acting as Warrant Agent,
the Company shall appoint a successor to such Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such incapacity by the Warrant Agent or by the registered
holder of a Warrant Certificate, then the registered holder of any Warrant may
apply to any court of competent jurisdiction for the appointment of a successor
to the Warrant Agent. Pending appointment of a successor to such Warrant Agent,
either by the Company or by such a court, the duties of the Warrant Agent shall
be carried out by the Company. The holders of a majority of the unexercised
Warrants shall be entitled at any time to remove the Warrant Agent and appoint a
successor to such Warrant Agent. Such successor to the Warrant Agent need not be
approved by the Company or the former Warrant Agent. After appointment the
successor to the Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent
without further act or deed; provided that the former Warrant Agent shall
deliver and transfer to the successor to the Warrant Agent any property at the
time held by it hereunder and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in
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this Section 13, however, or any defect therein, shall not affect the legality
or validity of the appointment of a successor to the Warrant Agent.
SECTION 14. REPORTS
(a) The Company agrees with each holder, for so long as any Warrants or
Warrant Shares remain outstanding and during any period in which the Company (i)
is not subject to Section 13 or 15(d) of the Exchange Act, to make available,
upon request of any Holder, to such Holder or beneficial owner of Warrants or
Warrant Shares in connection with any sale thereof and any prospective purchaser
of such Warrants or Warrant Shares designated by such Holder or beneficial
owner, the information required by Rule 144(A)(d)(4) under the Securities Act in
order to permit resales of such Warrants or Warrant Shares pursuant to Rule
144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales of
such Warrants or Warrant Shares pursuant to Rule 144A.
(b) The Company shall provide the Warrant Agent with a sufficient number of
copies of all such reports that the Warrant Agent may be required to deliver to
the holders of the Warrants and the Warrant Shares under this Section 14.
SECTION 15. NOTICES TO COMPANY AND WARRANT AGENT.
Any notice or demand authorized by this Agreement to be given or made by
the Warrant Agent or by the registered holder of any Warrant to or on the
Company shall be sufficiently given or made when received if deposited in the
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent) as follows:
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, III, Esq.
With a copy to:
Xxxxxxxx & Xxxxx
International Financial Centre
Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX, XX
Telecopier No.: 00 000 000-0000
Attention: X. Xxxxxx Xxxxx, Esq.
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder(s) of any Warrant to the Warrant Agent shall be sufficiently
given when and if deposited in the
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mail, first-class or registered, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) to the
Warrant Agent as follows:
Norwest Bank Minnesota, National Association
X0000-000
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Services
SECTION 16. FURTHER AGREEMENTS.
(a) Public Equity Offering.
The Company agrees that it shall not undertake any initial Public Equity
Offering of common stock of any class other than the class of Common Stock into
which the Warrants are exercisable, unless the Company provides Holders of the
Warrants and Registrable Securities the ability to convert their Warrant Shares
or to exercise their Warrants for common stock of the same class as is the
subject of the initial Public Equity Offering.
(b) Investment Company.
The Company agrees that it shall not, and shall not permit any of its
subsidiaries, to take any action that would subject it to the requirements of
the Investment Company Act of 1940.
SECTION 17. SUPPLEMENTS AND AMENDMENTS.
The Company and the Warrant Agent may from time to time supplement or amend
this Agreement without the approval of any holders of Warrants in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not, as evidenced by an opinion of counsel delivered to the Warrant Agent, in
any way adversely affect the interests of the holders of Warrants. Any amendment
or supplement to this Agreement that has an adverse effect on the interests of
the holders of Warrants shall require the written consent of the holders of a
majority of the then outstanding Warrants (excluding Warrants held by the
Company or any of its affiliates). The Warrant Agent shall be entitled to
receive and, subject to Section 12, shall be fully protected in relying upon an
Officers' Certificate and Opinion of Counsel as conclusive evidence that any
such amendment or supplement is authorized or permitted hereunder, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms. The Company may not sign any amendment or
supplement until the Company's Board of Directors approves it. The consent of
each holder of Warrants affected shall be required for any amendment pursuant to
which the Exercise Price would be increased or the number of Warrant Shares
purchasable upon exercise of Warrants would be decreased (other than pursuant to
adjustments provided in this Agreement).
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SECTION 18. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 19. TERMINATION.
This Agreement shall terminate at 5:00 p.m., New York City time on October
15, 2009. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date if all Warrants have been exercised. The provisions of Section 12
shall survive such termination.
SECTION 20. GOVERNING LAW.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the internal laws of said State.
SECTION 21. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the registered holders
of Warrants any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the Company,
the Warrant Agent and the registered holders of Warrants.
SECTION 22. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Operating Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Warrant Agent
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
39
EXHIBIT A
[Form of Warrant Certificate]
[Face]
Unit Legend. Each Warrant issued prior to the Separation Date shall bear
the Unit Legend on the face thereof on the face thereof.
Private Placement Legend: Each Warrant issued pursuant to an exemption from
the registration requirements of the Securities Act shall bear the Private
Placement Legend on the face thereof.
Transfer Restriction Legend: Each Warrant issued should bear the Transfer
Restriction Legend on the face thereof.
No. ___________ ___Warrants
CUSIP No. ________
Warrant Certificate
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of Warrants expiring October 15, 2009 (the
"Warrants") to purchase Common Stock, par value $0.01 (the "Common Stock"), of
X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation (the "Company").
Each Warrant entitles the registered holder upon exercise at any time from 9:00
a.m. on the Separation Date referred to below (the "Exercise Date") until 5:00
p.m. New York City Time on October 15, 2009 to receive from the Company 0.9327
fully paid and nonassessable shares of Common Stock (the "Warrant Shares") at
the initial exercise price (the "Exercise Price") of $0.01 per share payable
upon surrender of this Warrant Certificate and payment of the Exercise Price at
the office or agency of the Warrant Agent, but only subject to the conditions
set forth herein and in the Warrant Agreement referred to on the reverse hereof.
The Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time on October
15, and to the extent not exercised by such time such Warrants shall become
void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
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This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
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IN WITNESS WHEREOF, X'Xxxxxxxx Industries Holdings, Inc. has caused this
Warrant Certificate to be signed below.
DATED: November 30, 1999
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
Countersigned:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Warrant Agent
By:
---------------------------------
Name:
Title:
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[Reverse of Warrant Certificate]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring at 5:00 p.m. New York City time on October
15, 2009 entitling the holder on exercise to receive shares of Common Stock, and
are issued or to be issued pursuant to a Warrant Agreement dated as of November
30, 1999 (the "Warrant Agreement"), duly executed and delivered by the Company
to Norwest Bank Minnesota, National Association, as warrant agent (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated by reference in and made
a part of this instrument and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Warrant Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Warrants. A copy of
the Warrant Agreement may be obtained by the holder hereof upon written request
to the Company.
Warrants may be exercised at any time on or after the Separation Date and
on or before 5:00 p.m. New York City time on October 15, 2009; provided that
holders shall be able to exercise their Warrants only if a registration
statement relating to the Warrants Shares is then in effect, or the exercise of
such Warrants is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and such securities are qualified
for sale or exempt from qualification under the applicable securities laws of
the states in which the various holders of the Warrants or other persons to whom
it is proposed that the Warrant Shares be issued on exercise of the Warrants
reside. In order to exercise all or any of the Warrants represented by this
Warrant Certificate, the holder must deliver to the Warrant Agent at its
corporate trust office set forth in Section 15 of the Warrant Agreement this
Warrant Certificate and the form of election to purchase on the reverse hereof
duly filled in and signed, which signature shall be medallion guaranteed by an
institution which is a member of a Securities Transfer Association recognized
signature guarantee program, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price, as adjusted as provided in the
Warrant Agreement, for the number of Warrant Shares in respect of which such
Warrants are then exercised. No adjustment shall be made for any dividends on
any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
The Company has agreed pursuant to a Warrant Registration Rights Agreement
dated as of November 30, 1999 (the "Warrant Registration Rights Agreement") to
provide the holders of the Warrants with certain demand and piggy-back
registration rights with respect to the Common Stock purchasable upon exercise
of such Warrants, as set forth in the Warrant Registration Rights Agreement. A
copy of the Warrant Registration Rights Agreement may be obtained by the holder
hereof upon written request to the Company or the Warrant Agent.
The Warrants and the shares of Common Stock underlying the Warrants are
subject to certain restrictions on transfer and other restrictions set forth in
a Registration Rights Agreement and a Stockholders Agreement, each dated
November 30, 1999. Copies of the Registration Rights Agreement
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and the Stockholders Agreement may be obtained by the holder hereof upon written
request to the Company or the Warrant Agent.
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
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[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____________ shares of
Common Stock and herewith tenders payment for such shares to the order of
X'XXXXXXXX INDUSTRIES HOLDINGS, INC., in the amount of [Warrants] [Notes] equal
in [fair market value] [principal amount] to $__________ in accordance with the
terms hereof. The undersigned requests that a certificate for such shares be
registered in the name of _______________, whose address is __________________
and that such shares be delivered to ___________, whose address is
____________________________. If said number of shares is less than all of the
shares of Common Stock purchasable hereunder, the undersigned requests that a
new Warrant Certificate representing the remaining balance of such shares be
registered in the name of ______________________, whose address is
____________________, and that such Warrant Certificate be delivered to whose
address is__________________.
----------------------------------------
Signature
Date:
----------------------------------------
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL WARRANTS
The following exchanges of a part of this Global Warrant have been made:
Number of Warrants
Amount of decrease in this Global
in Number of Amount of increase in Warrant following Signature of
warrants in this Number of Warrants in such decrease or authorized officer
Date of Exchange Global Warrant this Global Warrant increase of Warrant Agent
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
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