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EXHIBIT 4.5
EXECUTION COPY
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X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
Warrants to Purchase
39,273 Shares of Series B Junior Preferred 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 39,273 shares of series B junior
preferred stock, par value $0.01 per share (the "PREFERRED STOCK"), of the
Company (the Preferred 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' 133/8% Senior Subordinated Notes due 2009 (the
"NOTES"), one Warrant, each Warrant initially representing the right to
purchase 0.3927 Warrant Shares and one warrant to purchase shares of the
Company's common stock, each such warrant initially representing the right to
purchase 0.9327 shares of the Company's common 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.
"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.
"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
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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 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.
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(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.
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
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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.
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(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 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;
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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 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
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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 (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
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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."
(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
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REQUIREMENTS OF THE SECURITIES ACT. TERMS IN THIS LEGEND HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(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
Preferred 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.
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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 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.
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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 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 Preferred 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 Preferred Stock as of any date shall equal
(i) if Preferred 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 Preferred 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 Preferred
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
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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 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(f) hereof, or
a tender offer or an exchange offer for shares of Preferred 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.
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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 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
Preferred Stock or its authorized and issued Preferred 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
Preferred Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
(b) The Company or, if appointed, the transfer agent for the Preferred
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
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principal securities exchanges, automated quotation systems or other markets
within the United States of America, if any, on which other shares of Preferred
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.
(a) Adjustment for Change in Capital Stock.
If the Company (i) pays a dividend or makes a distribution on its
Preferred Stock in shares of its Preferred Stock, (ii) subdivides its
outstanding shares of Preferred Stock into a greater number of shares, (iii)
combines its outstanding shares of Preferred Stock into a smaller number of
shares, (iv) makes a distribution on its Preferred Stock in shares of its
capital stock other than Preferred Stock or (v) issues by reclassification of
its Preferred 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 Preferred Stock in
this Section 8.
If the Company distributes to all holders of its Preferred 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 assets, securities, rights, or warrants
to which the holder of any Warrant would have been entitled immediately
following such distribution if such Warrant had been exercised immediately
prior to such distribution, shall be placed in escrow prior to such
distribution, in an account to be established with the Warrant Agent. Such
assets, securities, rights, or warrants are to be released to the holder of
such Warrant upon exercise of such Warrant pursuant to the terms of this
Warrant Agreement.
Such adjustment, or deposit into escrow, shall be made successively
whenever any event listed above shall occur.
(b) 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
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of a share, as the case may be, it being understood that no such rounding shall
be made under subsection (j).
(c) When No Adjustment Required.
No adjustment need be made for a transaction referred to Section 8(a)
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 Preferred Stock participate in the transaction.
No adjustment need be made for (i) rights to purchase Preferred 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 Preferred 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.
(d) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 10 hereof.
(e) 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) hereof and if the Company does not
arrange for Warrant holders to participate pursuant to Section 8(c) hereof,
(ii) the Company takes any action that would require a supplemental Warrant
Agreement pursuant to Section 8(f) 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.
(f) 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(f) 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
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corporation, that issuer shall join in the supplemental Warrant Agreement and
Warrant Registration Rights Agreement. If this Section 8(f) applies, Section
8(a) hereof does not apply.
(g) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to Section 8(a), (b) or (c) hereof is conclusive.
(h) 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(f) hereof are 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.
(i) 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.
(j) 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 Preferred 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.
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E = the Exercise Price prior to adjustment.
(k) 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 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 (as defined in that certain Warrant Agreement,
dated as of the date hereof, between the parties hereto, regarding warrants to
purchase common stock of the Company) 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 Preferred Stock of rights, options or warrants to subscribe for
or purchase shares of Preferred Stock or of any other subscription rights
or warrants;
(ii) the Company shall authorize the distribution to all holders of
shares of Preferred 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 Preferred Stock or distributions referred
to in Section 10(a) hereof);
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(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
Preferred 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 Preferred 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;
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 Preferred 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 Preferred 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 Preferred 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
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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.
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
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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 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
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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 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:
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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 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) Stock Issuances and Offerings.
The Company agrees that it shall not issue any shares of its preferred
stock to any of its Affiliates without first receiving an opinion from an
investment bank of nationally recognized standing that the terms of such
issuance are fair; provided that the Company may issue such shares with the
prior consent of a majority of the outstanding warrants to purchase shares of
Preferred Stock. The Company shall not permit any of its subsidiaries to
publicly offer any shares of capital stock.
(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.
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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).
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.
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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:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Warrant Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name:
Title:
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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 series B junior preferred stock, par value $0.01 (the
"Preferred 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 0.3927 fully paid and nonassessable shares of
Preferred 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, 2009, 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
Preferred 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 Preferred 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 Preferred Stock issuable upon
the exercise of each Warrant shall be adjusted. No fractions of a share of
Preferred 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 Preferred 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 Preferred 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
Preferred 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 Preferred 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 Amount of increase in this Global
in Number of in Number of Warrant following Signature of
warrants in this Warrants in this such decrease or authorized officer
Date of Exchange Global Warrant Global Warrant increase of Warrant Agent
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