EXHIBIT 10.6
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR
OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THIS
WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER ARE SUBJECT TO AND
HAVE THE BENEFIT OF A WARRANTHOLDERS RIGHTS AGREEMENT DATED AS OF JUNE 14, 1999
AMONG MCR HOLDINGS, INC., XXXXXXX X. XXXXXX REVOCABLE TRUST U/A DATED OCTOBER 1,
1997, AND THE WARRANTHOLDERS LISTED ON THE SIGNATURE PAGES THEREOF, A COPY OF
WHICH IS ON FILE WITH MEDICHEM HOLDING CORPORATION
Dated: June 14, 1999
WARRANT
To Purchase 16916 shares of Class C
Common Stock of MCR HOLDINGS, INC.
Expiring June 14, 2009
THIS TO CERTIFY THAT, for value received, NATIONSCREDIT COMMERCIAL
CORPORATION or any registered assigns ("Holder") is entitled to purchase from
MCR HOLDINGS, INC., an Illinois corporation (the "Company"), at any time or from
time to time after 9:00 a.m., New York City time, on the date hereof and prior
to 5:00 p.m., New York City time, on June 14, 2009, at the place where the
Warrant Agency is located, at the Exercise Price, the number of shares of Class
C Common Stock, par value $.01 per share (the "Class C Common Stock") of the
Company shown above, subject to adjustment as provided in Articles IV and V
hereof, and upon the terms and conditions hereinafter provided, and is entitled
also to exercise the other appurtenant rights, powers and privileges hereinafter
described.
This Warrant is one of one or more warrants (the "Warrants") of the
same form and having the same terms as this Warrant, entitling the holders
initially to purchase up to an aggregate of 16916 shares of Class C Common
Stock. The Warrants have been issued by the Company pursuant to the Credit
Agreement dated as of June 14, 1999 (as amended from time to time, the "Credit
Agreement") among the Company, MediChem Research, Inc. (the "Borrower"), the
Lenders listed on the signature pages thereof and NationsCredit Commercial
Corporation as Agent for such Lenders, in consideration of a loan to the
Borrower by such Lenders. The Holder is entitled to certain benefits as set
forth therein and to certain benefits described in the Warrantholders Rights
Agreement. The Company shall
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keep a copy of the Credit Agreement and the Warrantholders Rights Agreement, and
any amendments thereto, at the Warrant Agency and shall furnish, without charge,
copies thereof to the Holder upon request.
Certain terms used in this Warrant are defined in Article VI.
ARTICLE I
EXERCISE OF WARRANTS
1.1. Method of Exercise. To exercise this Warrant in whole or in part,
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the Holder shall deliver on any Business Day to the Company at the Warrant
Agency (a) this Warrant, (b) a written notice of the Holder's election to
exercise this Warrant, which notice shall specify the number of shares of Class
C Common Stock to be purchased (which shall be a whole number of shares if for
less than all the shares then issuable hereunder), the denominations of the
share certificate or certificates desired and the name or names in which such
certificates are to be registered, and (c) payment of the Exercise Price with
respect to such shares. Such payment may be made, at the option of the Holder,
either (a) by cash, certified or bank cashier's check or wire transfer in an
amount equal to the product of (i) the Exercise Price times (ii) the number of
Warrant Shares as to which this Warrant is being exercised or (b) by receiving
from the Company the number of Warrant Shares equal to (i) the number of Warrant
Shares as to which this Warrant is being exercised minus (ii) the number of
Warrant Shares having an aggregate value, based on the Closing Price on the
trading day immediately prior to the date of such exercise, equal to the product
of (x) the Exercise Price times (y) the number of Warrant Shares as to which
this Warrant is being exercised.
The Company shall, as promptly as practicable and in any event within
seven days after receipt of such notice and payment, execute and deliver or
cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of shares of Class
C Common Stock specified in said notice together with cash in lieu of any
fractions of a share as provided in Section 1.3. The share certificate or
certificates so delivered shall be in such denominations as may be specified in
such notice, and shall be issued in the name of the Holder or such other name or
names as shall be designated in such notice. This Warrant shall be deemed to
have been exercised and such certificate or certificates shall be deemed to have
been issued, and such Holder or any other Person so designated to be named
therein shall be deemed for all purposes to have become a holder of record of
shares, as of the date the aforementioned notice and payment is received by the
Company. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of such certificate or certificates, deliver to
the Holder a new Warrant evidencing the right to purchase the remaining shares
of Class C Common Stock called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant, or, at the request of the
Holder, appropriate notation may be made on this Warrant which shall then be
returned to the Holder. The Company shall pay all expenses, taxes and other
charges payable in connection with the preparation, issuance and delivery of
share certificates and new Warrants, except that, if share certificates or new
Warrants shall be registered in a name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a
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result of such transfer shall be paid by the Holder at the time of delivery of
the aforementioned notice of exercise or promptly upon receipt of a written
request of the Company for payment.
1.2. Shares to be Fully Paid and Nonassessable. All shares of Class C
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is Common Stock sued upon the exercise of this Warrant and all shares of Class A
Common Stock issued upon the conversion of such Class C Common Stock shall be
validly issued, fully paid and nonassessable.
1.3. No Fractional Shares Required to be Issued. The Company shall
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not be required to issue fractions of shares of Class C Common Stock upon
exercise of this Warrant. If any fraction of a share would, but for this
Section, be issuable upon final exercise of this Warrant, in lieu of such
fractional share, the Company shall pay to the Holder in cash an amount equal to
the same fraction of the Fair Market Value of the Company per share of
outstanding Common Stock on the Business Day immediately prior to the date of
such exercise.
1.4. Legend. Each certificate for shares of Class C Common Stock
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issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Securities Act, shall bear the following legend:
This security has not been registered under the Securities
Act of 1933 and may not be sold or offered for sale unless
registered under said Act and any applicable state securities
laws or unless an exemption from such registration is available.
This security is also subject to and has the benefit of a
Warrantholders Rights Agreement dated as of June 14, 1999 among
MCR HOLDINGS, INC., Xxxxxxx X. Xxxxxx Revocable Trust U/A Dated
October 1, 1997, and the Warrantholders listed on the signature
pages thereof, copies of which are on file with MCR HOLDINGS, INC."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public offering pursuant to a registration statement under the Securities
Act) shall also bear such legend unless, in the opinion of counsel selected by
the Holder of such certificate (who may be an employee of such holder) and
reasonably acceptable to the Company, the securities represented thereby need no
longer be subject to restrictions on resale under the Securities Act.
1.5. Reservation. The Company has duly reserved, and will keep
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available for issuance upon exercise of the Warrants, the total number of
Warrant Shares deliverable from time to time upon exercise of all Warrants from
time to time outstanding and the total number of shares of Class A Common Stock
deliverable upon conversion of such Warrant Shares to Class A Common Stock. The
Company will not take any actions during the term of this Warrant that would
result in any adjustment of the number of shares of Common Stock issuable upon
the exercise of the Warrant if (i) the total number of shares of Common Stock
issuable after such action upon exercise of this Warrant, (ii) all shares of
Common Stock
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issued and outstanding and (iii) all shares then issuable (y) upon the exercise
of all Options and (z) upon the conversion or exchange of all Convertible
Securities, would exceed the total number of shares of Common Stock then
authorized for issuance by the Company. The Company will not change the Class C
Common Stock from par value $.01 per share to any higher par value which exceeds
the Exercise Price then in effect, and will reduce the par value of the Class C
Common Stock upon any event described in Article IV that provides for an
increase in the number of shares of Class C Common Stock subject to purchase
upon exercise of this Warrant, in inverse proportion to and effective at the
same time as such number of shares is increased. As of June 14, 1999, the
Company had outstanding (i) 400,000 shares of Class A Common Stock, (ii) 88,458
shares of Class B Common Stock, (iii) 0 shares of Class C Common Stock, (iv)
340,441 shares of Class A Preferred Stock and (v) 0 shares of Class B Preferred
Stock, (vi) 1000 shares of Class C Preferred Stock, (vii) 1000 shares of Class D
Preferred Stock, and no other shares of capital stock or any securities
convertible into or exchangeable for shares of capital stock or any rights,
options or warrants to purchase any shares of capital stock or any securities
convertible into or exchangeable for shares of capital stock. Neither the
issuance of this Warrant nor the issuance of Warrant Shares upon exercise of
this Warrant violates or conflicts with the Company's certificate of
incorporation or bylaws or any agreement to which the Company is a party.
ARTICLE II
WARRANT AGENCY;
TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS
2.1. Warrant Agency. As long as any Warrant remains outstanding, the
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Company shall perform the obligations of and be the warrant agency with respect
to the Warrants (the "Warrant Agency") at its address set forth in the Credit
Agreement or at such other address as the Company shall specify by notice to all
Warrantholders.
2.2. Ownership of Warrant. The Company may deem and treat the person
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in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any person
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until due presentment of this Warrant for registration of
transfer as provided in this Article II.
2.3. Transfer of Warrant. The Company agrees to maintain at the
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Warrant Agency books for the registration of transfers of the Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant Agency,
together with a written assignment of this Warrant duly executed by the Holder
or its duly authorized agent or attorney, with (if the Holder is a natural
person) signatures guaranteed by a bank or trust company or a broker or dealer
registered with the NASDAQ, and funds sufficient to pay any transfer taxes
payable upon such transfer. Upon surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denominations specified in the instrument of
assignment (which shall be whole numbers
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of shares only) and shall issue to the assignor a new Warrant evidencing the
portion of this Warrant not so assigned, and this Warrant shall promptly be
canceled.
2.4. Division or Combination of Warrants. This Warrant may be
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divided or combined with other Warrants upon presentment hereof and of any
Warrant or Warrants with which this Warrant is to be combined at the Warrant
Agency, together with a written notice specifying the names and denominations
(which shall be whole numbers of shares only) in which the new Warrant or
Warrants are to be issued, signed by the holders hereof and thereof or their
respective duly authorized agents or attorneys. Subject to compliance with
Section 2.3 as to any transfer or assignment which may be involved in the
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
2.5. Loss, Theft, Destruction of Warrant Certificates. Upon receipt
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of evidence satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant and, in the case of any such loss,
theft or destruction, upon receipt of indemnity or security satisfactory to the
Company (it being understood and agreed that if the holder of such Warrant is
NationsCredit Commercial Corporation, then a written agreement of indemnity
given by NationsCredit Commercial Corporation alone shall be satisfactory to the
Company and no further security shall be required) or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing the right to purchase the same
aggregate number of shares of Class C Common Stock.
2.6. Expenses of Delivery of Warrants. The Company shall pay all
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expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of Warrants hereunder.
ARTICLE III
CERTAIN RIGHTS
3.1. Rights and Obligations under the Warrantholders Rights Agreement.
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This Warrant is entitled to the benefits and subject to the terms of the
Warrantholders Rights Agreement dated as of June 14, 1999 among the Company,
Xxxxxxx X. Xxxxxx Revocable Trust U/A Dated October 1, 1997, and the
Warrantholders listed on the signature pages thereof (as amended from time to
time, the "Warrantholders Rights Agreement"). The Company shall keep or cause to
be kept a copy of the Warrantholders Rights Agreement, and any amendments
thereto, at the Warrant Agency and shall furnish, without charge, copies thereof
to the Holder upon request.
3.2. Determination of Fair Market Value. Subject to Section 3.3
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hereof, each determination of Fair Market Value hereunder shall be made in good
faith by the Company. Upon each determination of Fair Market Value by the
Company hereunder, the
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Company shall promptly give notice thereof to all Warrantholders, setting forth
in reasonable detail the calculation of such Fair Market Value and the method
and basis of determination thereof (the "Company Determination").
3.3. Contest and Appraisal Rights. (a) If the holders of Warrants
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entitling such holders to purchase a majority of the Class C Common Stock
subject to purchase upon exercise of Warrants at the time outstanding (exclusive
of Warrants then owned by the Company or any Subsidiary (as defined in the
Credit Agreement) or Affiliate (as defined in the Credit Agreement) thereof (the
"Required Interest") disagree with the Company Determination and by notice to
the Company given within 30 days after receipt of notice of the Company
Determination (an "Appraisal Notice") elects to dispute the Company
Determination, such dispute shall be resolved as set forth in subsection (b) of
this Section.
(b) The Company shall within 30 days after an Appraisal Notice shall
have been given pursuant to subsection (a) of this Section engage an investment
bank or other qualified appraisal firm acceptable to the Required Interest (the
"Appraiser") to make an independent determination of Fair Market Value (the
"Appraiser Determination"). The Appraiser Determination shall be final and
binding on the Company and all Warrantholders. If the Company Determination and
the Appraiser Determination differ by an amount of 15% or less of the Company
Determination, then the costs of conducting the appraisal shall be borne equally
by the Company and the Warrantholders; if the Company Determination is greater
than the Appraiser Determination by more than 15% of the Company Determination,
then the costs of conducting the appraisal shall be borne entirely by the
Warrantholders; and if the Appraiser Determination is greater than the Company
Determination by more than 15% of the Company Determination, then the costs of
conducting the appraisal shall be borne entirely by the Company; provided that
in each case, costs separately incurred by the Company and any Warrantholders
shall be separately borne by them.
3.4. Financial Statements and Other Information. Promptly upon
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transmission thereof, the Company will deliver to the Holder copies of any and
all financial statements, proxy statements, notices and other reports as it may
send to its public stockholders and copies of all registration statements and
all reports which it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to its functions). The Company also
will, and will cause its Subsidiaries to, deliver to the Holder, with reasonable
promptness, such other information or data with respect to the Company or any of
its Subsidiaries as from time to time may be reasonably requested by the Holder.
ARTICLE IV
ANTIDILUTION PROVISIONS
SECTION 4.1. General. The Exercise Price and the number of shares of
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Class C Common Stock (or other securities or property) issuable upon exercise of
this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events as provided in this Article IV; provided that
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notwithstanding anything to the contrary herein,
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the Exercise Price shall not be less than the par value of the Class C Common
Stock, as such par value is reduced from time to time in accordance with Section
1.5.
SECTION 4.2. Common Stock Reorganization. If the Company shall
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subdivide its outstanding shares of Common Stock (or any class thereof) into a
greater number of shares or consolidate its outstanding shares of Common Stock
(or any class thereof) into a smaller number of shares (any such event being
called a "Common Stock Reorganization"), then (a) the Exercise Price shall be
adjusted, effective immediately after the effective date of such Common Stock
Reorganization, to a price determined by multiplying the Exercise Price in
effect immediately prior to such effective date by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on such
effective date before giving effect to such Common Stock Reorganization and the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such Common Stock Reorganization, and (b) the number of
shares of Class C Common Stock subject to purchase upon exercise of this Warrant
shall be adjusted, effective at such time, to a number determined by multiplying
the number of shares of Class C Common Stock subject to purchase immediately
before such Common Stock Reorganization by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding after giving effect to
such Common Stock Reorganization and the denominator of which shall be the
number of shares of Common Stock outstanding immediately before such Common
Stock Reorganization.
SECTION 4.3. Common Stock Distribution. (a) If the Company shall
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issue, sell or otherwise distribute any shares of Common Stock, other than
pursuant to this Agreement or a Common Stock Reorganization (which is governed
by Section 4.2 hereof) (any such event, including any event described in
paragraphs (b) and (c) below, being herein called a "Common Stock
Distribution"), for a consideration per share less than the Exercise Price then
in effect or the Fair Market Value of the Company per share of outstanding
Common Stock on a Fully Diluted Basis on the date of such Common Stock
Distribution (before giving effect to such Common Stock Distribution), then,
effective upon such Common Stock Distribution, the Exercise Price shall be
reduced, if such consideration per share shall be less than the Exercise Price
then in effect but not less than the Fair Market Value per share, to the lower
of the prices, (calculated to the nearest one-thousandth of one cent) determined
as provided in clauses (i) and (ii) below or, if such consideration per share
shall be less than such Fair Market Value per share, to the lowest of the prices
(calculated to the nearest one thousandth of one cent) determined as provided in
clauses (i), (ii) and (iii) below:
(i) if the Company shall receive any consideration for the
Common Stock issued, sold or distributed, in such Common Stock
Distribution, the consideration per share of Common Stock received
by the Company upon such issue, sale or distribution;
(ii) by dividing (A) an amount equal to the sum of (1) the
number of shares of Common Stock outstanding immediately prior to
such Common Stock Distribution multiplied by the then existing
Exercise Price, plus (2) the consideration, if any, received by
the Company upon such Common Stock
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Distribution by (B) the total number of shares of Common Stock
outstanding immediately after such Common Stock Distribution; and
(iii) by multiplying the Exercise Price in effect
immediately prior to such Common Stock Distribution by a fraction,
the numerator of which shall be the sum of (A) the number of
shares of Common Stock outstanding immediately prior to such
Common Stock Distribution multiplied by such Fair Market Value
per share on the date of such Common Stock Distribution, plus (B)
the consideration, if any, received by the Company upon such
Common Stock Distribution, and the denominator of which shall be
the product of (1) the total number of shares of Common Stock
outstanding immediately after such Common Stock Distribution
multiplied by (2) such Fair Market Value per share on the date of
such Common Stock Distribution.
If any Common Stock Distribution shall require an adjustment to the
Exercise Price pursuant to the foregoing provisions of this paragraph (a),
including by operation of paragraph (b) or (c) below, then, effective at the
time such adjustment is made, the number of shares of Class C Common Stock
subject to purchase upon exercise of this Warrant shall be increased to a number
determined by multiplying the number of shares of Class C Common Stock subject
to purchase immediately before such Common Stock Distribution by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such Common Stock Distribution and the
denominator of which shall be the sum of the number of shares outstanding
immediately before giving effect to such Common Stock Distribution (both
calculated on a Fully Diluted Basis) plus the number of shares of Common Stock
which the aggregate consideration received by the Company with respect to such
Common Stock Distribution would purchase at the Fair Market Value of the Company
per share of outstanding Common Stock on a Fully Diluted Basis on the date of
such Common Stock Distribution (before giving effect to such Common Stock
Distribution). In computing adjustments under this paragraph, fractional
interests in Common Stock shall be taken into account to the nearest one-
thousandth of a share.
The provisions of this paragraph (a), including by operation of
paragraph (b) or (c) below, shall not operate to increase the Exercise Price or
reduce the number of shares of Class C Common Stock subject to purchase upon
exercise of this Warrant.
(b) If the Company shall issue, sell, distribute or otherwise grant
in any manner (including by assumption) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of Common Stock or any
stock or securities convertible into or exchangeable for Common Stock (such
rights, warrants or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the rights to convert or exchange
any such Convertible Securities in respect of such Options are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities in respect of such Options (determined by dividing (i) the aggregate
amount, if any, received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate
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amount of additional consideration payable to the Company upon the exercise of
all such Options, plus, in the case of Options to acquire Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the issuance or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options) shall be less than the Exercise Price then in effect or less than
the Fair Market Value of the Company per share of outstanding Common Stock on a
Fully Diluted Basis on the date of granting such Options (before giving effect
to such grant), then, for purposes of paragraph (a) above, the total maximum
number of shares of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed to have
been issued as of the date of granting of such Options and thereafter shall be
deemed to be outstanding and the Company shall be deemed to have received as
consideration such price per share, determined as provided above, therefor.
Except as otherwise provided in paragraph (d) below, no additional adjustment of
the Exercise Price shall be made upon the actual exercise of such Options or
upon conversion or exchange of such Convertible Securities.
(c) If the Company shall issue, sell or otherwise distribute
(including by assumption) any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon such conversion or exchange
(determined by dividing (i) the aggregate amount received or receivable by the
Company as consideration for the issuance, sale or distribution of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Exercise Price then in effect or less than the Fair Market Value
of the Company per share of outstanding Common Stock on a Fully Diluted Basis on
the date of such issuance, sale or distribution (before giving effect to such
issuance, sale or distribution), then, for purposes of paragraph (a) above, the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be deemed to have been issued
as of the date of the issuance, sale or distribution of such Convertible
Securities and thereafter shall be deemed to be outstanding and the Company
shall be deemed to have received as consideration such price per share,
determined as provided above, therefor. Except as otherwise provided in
paragraph (d) below, no additional adjustment of the Exercise Price shall be
made upon the actual conversion or exchange of such Convertible Securities.
(d) If (i) the purchase price provided for in any Option referred to
in paragraph (b) above or the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in paragraph
(b) or (c) above or the rate at which any Convertible Securities referred to in
paragraph (b) or (c) above are convertible into or exchangeable for Common Stock
shall change at any time (other than under or by reason of provisions designed
to protect against dilution upon an event which results in a related adjustment
pursuant to this Article IV), or (ii) any of such Options or Convertible
Securities
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shall have terminated, lapsed or expired, then the Exercise Price then in effect
shall forthwith be readjusted (effective only with respect to any exercise of
this Warrant after such readjustment) to the Exercise Price which would then be
in effect had the adjustment made upon the issuance, sale, distribution or grant
of such Options or Convertible Securities been made based upon such changed
purchase price, additional consideration or conversion rate, as the case may be
(in the case of any event referred to in clause (i) of this paragraph (d)) or
had such adjustment not been made (in the case of any event referred to in
clause (ii) of this paragraph (d)).
(e) If the Company shall pay a dividend or make any other
distribution upon any capital stock of the Company payable in Common Stock,
Options or Convertible Securities, then, for purposes of paragraph (a) above,
such Common Stock, Options or Convertible Securities shall be deemed to have
been issued or sold without consideration.
(f) If any shares of Common Stock, Options or Convertible Securities
shall be issued, sold or distributed for cash, the consideration received
therefor shall be deemed to be the amount received by the Company therefor,
after deduction therefrom of any expenses incurred in connection therewith. If
any shares of Common Stock, Options or Convertible Securities shall be issued
sold or distributed for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be deemed to be the
Fair Market Value of such consideration, after deduction of any expenses
incurred in connection therewith. If any shares of Common Stock, Options or
Convertible Securities shall be issued in connection with any merger in which
the Company is the surviving corporation, the amount of consideration therefor
shall be deemed to be the Fair Market Value of such portion of the assets and
business of the non-surviving corporation as shall be attributable to such
Common Stock, Options or Convertible Securities, as the case may be. If any
Options shall be issued in connection with the issuance and sale of other
securities of the Company, together comprising one integral transaction in which
no specific consideration is allocated to such Options by the parties thereto,
such Options shall be deemed to have been issued without consideration.
SECTION 4.4. Special Dividends. If the Company shall issue or
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distribute to any holder or holders of shares of Common Stock evidences of
indebtedness, any other securities of the Company or any cash, property or other
assets (excluding a Common Stock Reorganization or a Common Stock Distribution),
whether or not accompanied by a purchase, redemption or other acquisition of
shares of Common Stock (any such nonexcluded event being herein called a
"Special Dividend"), (a) the Exercise Price shall be decreased, effective
immediately after the effective date of such Special Dividend, to a price
determined by multiplying the Exercise Price then in effect by a fraction, the
numerator of which shall be the Fair Market Value of the Company per share of
outstanding Common Stock as of such effective date less any cash and the then
Fair Market Value of any evidences of indebtedness, securities or property or
other assets issued or distributed in such Special Dividend with respect to one
share of Common Stock, and the denominator of which shall be such Fair Market
Value per share and (b) the number of shares of Class C Common Stock subject to
purchase upon exercise of this Warrant shall be increased to a number determined
by multiplying the number of shares of Class C Common Stock subject to purchase
immediately before such Special Dividend by a fraction, the numerator of which
shall be the Exercise Price
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in effect immediately before such Special Dividend and the denominator of which
shall be the Exercise Price in effect immediately after such Special Dividend. A
reclassification of Common Stock (other than a change in par value, or from par
value to no par value or from no par value to par value) into shares of Common
Stock and shares of any other class of stock shall be deemed a distribution by
the Company to the holders of such Common Stock of such shares of such other
class of stock and, if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as part of such
reclassification, a Common Stock Reorganization.
SECTION 4.5. Capital Reorganizations. If there shall be any
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consolidation or merger to which the Company is a party, other than a
consolidation or a merger of which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization) in, outstanding shares of Common Stock, or any sale or
conveyance of the property of the Company as an entirety or substantially as an
entirety, or any recapitalization of the Company (any such event being called a
"Capital Reorganization"), then, effective upon the effective date of such
Capital Reorganization, the Holder shall no longer have the right to purchase
Class C Common Stock, but shall have instead the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive pursuant to such Capital Reorganization if this
Warrant had been exercised immediately prior to the effective date of such
Capital Reorganization. As a condition to effecting any Capital Reorganization,
the Company or the successor or surviving corporation, as the case may be, shall
(a) execute and deliver to the each Warrantholder and to the Warrant Agency an
agreement as to the Warrantholders' rights in accordance with this Section 4.5,
providing, to the extent of any right to purchase equity securities hereunder,
for subsequent adjustments as nearly equivalent as may be practicable to the
adjustments provided for in this Article IV and (b) provide each Regulation Y
Holder with an opinion of counsel reasonably satisfactory to such Regulation Y
Holder and such other assurances as any Regulation Y Holder may reasonably
request to the effect that the ownership and exercise by any Regulation Y Holder
of this Warrant after giving effect to such Capital Reorganization shall not be
prohibited by the BHC Act or the regulations thereunder. The provisions of this
Section 4.5 shall similarly apply to successive Capital Reorganizations.
SECTION 4.6. Adjustment Rules. Any adjustments pursuant to this
----------------
Article IV shall be made successively whenever an event referred to herein
occurs, except that, notwithstanding any other provision of this Article IV, no
adjustment shall be made to the number of shares of Class C Common Stock to be
delivered to each Warrantholder (or to the Exercise Price) if such adjustment
represents less than 1% of the number of shares previously required to be so
delivered, but any lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to 1% or more of the number of
shares to be so delivered. No adjustment shall be made pursuant to this Article
IV: (a) in respect of the issuance from time to time of shares of Common Stock
upon the exercise of any Warrants (b) with respect to issuances of shares of
Common Stock pursuant to any Public Offering, (c) upon conversion of Class C
Common Stock to Common Stock, (d) upon conversion of Series A Preferred Stock to
Common Stock in accordance with the terms of the Articles of
11
Incorporation of the Company, (e) upon exercise of any of the Options
outstanding on the Date of Issuance or with respect to issuance of any
additional options to purchase Common Stock to officers, employees and
independent directors of the Company ("Additional Options") (or issuance of
Common Stock upon exercise of any such Additional Options), so long as prior to
consummation of an Initial Public Offering the aggregate amount of Additional
Options does not represent more than 8.71% of the outstanding shares of Common
Stock on a fully diluted basis, (f) with respect to other rights granted to a
Person which is not an Affiliate (as defined in the Credit Agreement) as
consideration for the issuance of loans or extensions of credit to the Company
as long as the board of directors of the Company has determined in good faith
that the total consideration received from such Person is fair value for the
loans or extensions of credit received by the Company, provided that the Credit
Agreement shall have been terminated and all obligations thereunder paid in
full, or (g) with respect to any issuance of shares of Common Stock or Options
of the Company in a Third Party Transaction (or issuance of Common Stock upon
exercise of such Options). If the Company takes a record of the holders of its
Common Stock for any purpose referred to in this Article IV, then (i) such
record date shall be deemed to be the date of the issuance, sale, distribution
or grant in question and (ii) if the Company shall legally abandon such action
prior to effecting such action, no adjustment shall be made pursuant to this
Article IV in respect of such action.
SECTION 4.7. Proceedings Prior to Any Action Requiring Adjustment.
----------------------------------------------------
As a condition precedent to the taking of any action which would require an
adjustment pursuant to this Article IV, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that (a) the Company may thereafter validly and legally issue as fully
paid and nonassessable all shares of Class C Common Stock which any
Warrantholder is entitled to receive upon exercise of a Warrant and (b) the
ownership and exercise of any Warrant by any Regulation Y Holder shall not be
prohibited by the BHC Act or the regulations thereunder.
SECTION 4.8. Notice of Adjustment. Not less than 10 nor more than
--------------------
30 days prior to the record date or effective date, as the case may be, of any
action which requires or might require an adjustment or readjustment pursuant to
this Article IV, the Company shall give notice to each Warrantholder of such
event, describing such event in reasonable detail and specifying the record date
or effective date, as the case may be, and, if determinable, the required
adjustment and the computation thereof. If the required adjustment is not
determinable at the time of such notice, the Company shall give notice to each
Warrantholder of such adjustment and computation promptly after such adjustment
becomes determinable.
ARTICLE V
PURCHASE, REDEMPTION AND
CANCELLATION OF WARRANTS
5.1. Purchase of Warrants by the Company. The Company shall have the
-----------------------------------
right or obligation to purchase or otherwise acquire Warrants at such times, in
such manner and for such consideration as set forth below.
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5.2 Mandatory Redemption of Warrants. The Holder may (a) at any time
--------------------------------
and from time to time on or after repayment in full of all principal of and
premium and interest on the Notes (as defined in the Credit Agreement) and the
termination of the Commitments under the Credit Agreement, or (b) at any time
and from time to time on or after the fifth anniversary of the Closing Date, by
notice to the Company demand a determination of the Redemption Price (such
demand, a "Determination Notice") for purposes of this Section 5.2. Within 30
days after the receipt of any Determination Notice from the Holder, the Company
shall give to the Holder notice of the Redemption Price, including a reasonably
detailed description of the method of calculation thereof, determined as of the
day preceding such notice of the Redemption Price. At any time within 30 days
(or, in the case of a Refinancing Redemption or IPO Redemption (both as defined
below), 15 days) after receipt of notice of the Redemption Price (either
pursuant to a Determination Notice or as required pursuant to Section 5.5), the
Holder may demand redemption of this Warrant, in whole or in part (but no more
than once in any period of 180 days), at the Redemption Price by notice to the
Company, payable on the third Business Day after receipt of notice of such
demand (or, in the case of a Refinancing Redemption or an IPO Redemption, on the
closing date of such refinancing or Qualified IPO; any such date, the
"Redemption Due Date") in immediately available funds to the Holder upon
surrender of this Warrant at the Warrant Agency by wire transfer to any account
in New York City specified by notice to the Company. Thereupon, the right to
purchase shares of Class C Common Stock theretofore represented by this Warrant
as to which the Holder has demanded (and the Company may effect) redemption
shall terminate, and this Warrant shall represent the right of the Holder to
receive the full Redemption Price from the Company in accordance with this
Section; provided that, in the case of an optional redemption scheduled to occur
--------
as a result of the delivery of a Refinancing Notice (a "Refinancing Redemption")
or as a result of the delivery of an IPO Notice (an "IPO Redemption"), the
Holder shall have the right to withdraw any election made to exercise the
Warrant in anticipation of such event, and the Warrant shall be reinstated, if
such refinancing or Qualified IPO shall not occur on or before the date
specified in the applicable notice upon substantially the terms and conditions
specified in such notice. The Holder's right to demand redemption of this
Warrant pursuant to this Section 5.2 shall be referred to hereinafter as the
Holder's "Mandatory Redemption Right."
5.3 Optional Redemption. At any time and from time to time after the
-------------------
earliest of (a) the sixth anniversary of the Closing Date (as defined in the
Credit Agreement), (b) the date twelve months after the date on which all
outstanding amounts under the Credit Agreement have been paid in full and the
Commitments thereunder shall have terminated, and (c) the Closing Date of a
Qualified IPO, the Company shall have the right to redeem all, but not less than
all, of the outstanding Warrants at the Optional Redemption Price, determined as
of the day preceding the notice of redemption. Irrevocable notice of such right
of redemption shall be given by the Company to all Warrantholders not more than
30 days nor less than 15 days prior to the date scheduled for redemption,
stating the date and price, including a reasonably detailed description of the
method of calculation thereof, of redemption. Warrantholders may exercise
Warrants until 5:00 p.m., New York City time, on the Business Day preceding the
date of redemption set forth in a valid notice of redemption, at which time the
right to purchase shares of Class C Common Stock theretofore represented by
13
this Warrant shall terminate, and this Warrant shall represent the right of the
Holder to receive the Optional Redemption Price from the Company in immediately
available funds upon surrender of this Warrant at the Warrant Agency; provided
--------
that, in the case of an IPO Redemption, the Holder shall have the right to
withdraw any election made to exercise the Warrant in anticipation of such
event, and the Warrant shall be reinstated, if such Qualified IPO shall not
occur on or before the specified date. If the Optional Redemption Price shall
be disputed pursuant to Section 3.3, the Company shall pay to the affected
Warrantholders on the redemption date the Optional Redemption Price initially
determined by it and shall thereafter make supplemental payment of any increase
(and the affected Warrantholder shall remit to the Company decrease) in the
Optional Redemption Price upon resolution of such dispute.
5.4. Cancellation of Warrants. All Warrants purchased, redeemed or
------------------------
otherwise acquired by the Company shall thereupon be canceled and retired. The
Warrant Agency shall cancel any Warrant surrendered for exercise or registration
of transfer or exchange and deliver such canceled Warrants to the Company.
5.5 Notice of Refinancing or Qualified IPO. The Company shall give
--------------------------------------
notice to each of the Warrantholders of any intent by the Company to (i)
refinance in their entirety the Notes (as defined in the Credit Agreement) not
less than 30 days prior to the proposed closing date of such refinancing,
setting forth such proposed closing date, notifying each Warrantholder of its
rights under Section 5.2 and setting forth the Redemption Price, including a
reasonably detailed description as of the day preceding such notice (such
notice, the "Refinancing Notice"), or (ii) consummate a Qualified IPO not less
than 30 days prior to the proposed closing date of such Qualified IPO, setting
forth such proposed closing date, notifying each warrantholder of its rights
under Section 5.2 and of any election by the Company to call the Warrant
pursuant to Section 5.3 and setting forth the Redemption Price, including a
reasonably detailed description as of the day preceding such notice (an "IPO
Notice").
ARTICLE VI
DEFINITIONS
The following terms, as used in this Warrant, have the following
meanings:
"Advanced" means Advanced Life Sciences, Inc., an Illinois
corporation.
"Appraisal Notice" has the meaning set forth in Section 3.3(a).
"Appraiser" has the meaning set forth in Section 3.3(b).
"Appraiser Determination" has the meaning set forth in Section 3.3(b).
"BHC Act" means the Bank Holding Company Act of 1956, as amended.
"Borrower" has the meaning set forth in the second paragraph of this
Warrant.
14
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York or Chicago, Illinois are authorized
by law to close, unless there has been an offering of Common Stock registered
under the Securities Act, in which case "Business Day" means (a) if Common Stock
is listed or admitted to trading on a national securities exchange, a day on
which the principal national securities exchange on which the Common Stock is
listed or admitted to trading is open for business or (b) if Common Stock is not
so listed or admitted to trading, a day on which the New York Stock Exchange is
open for business.
"Capital Reorganization" has the meaning set forth in Section 4.5.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company.
"Class B Common Stock" means the Class B Common Stock, par value $.01
per share, of the Company.
"Class C Common Stock" means the Class C Common Stock, par value $.01
per share, of the Company.
"Class A Preferred Stock" means the Class A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Class B Preferred Stock" means the Class B 5% Redeembable Preferred
Stock, par value $0.01 per share, of the Company.
"Class C Preferred Stock" means the Class C Preferred Stock, par value
$0.01 per share, of the Company.
"Class D Preferred Stock" means the Class D Preferred Stock, par value
$0.01 per share, of the Company.
"Closing Price" on any day means (a) if Common Stock is listed or
admitted for trading on a national securities exchange, the reported last sales
price regular way or, if no such reported sale occurs on such day, the average
of the closing bid and asked prices regular way on such day, in each case on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, or (b) if Common Stock is not listed or admitted to trading
on any national securities exchange, the average of the closing bid and asked
prices in the over-the-counter market on such day as reported by NASDAQ or any
comparable system or, if not so reported, as reported by any New York Stock
Exchange member firm selected by the Company for such purpose.
"Common Stock" means the Class A Common Stock, the Class B Common
Stock, or the Class C Common Stock, or any or all of them, as the context may
require, and any stock or securities convertible into or exchangeable for such
stock.
"Common Stock Distribution" has the meaning set forth in Section
4.3(a).
15
"Common Stock Reorganization" has the meaning set forth in Section
4.2.
"Company" has the meaning set forth in the first paragraph of this
Warrant.
"Company Determination" has the meaning set forth in Section 3.2.
"Consolidated Total Debt" has the meaning specified in the Credit
Agreement.
"Convertible Securities" has the meaning set forth in Section 4.3(b).
"Credit Agreement" has the meaning set forth in the second paragraph
of this Warrant.
"EBITDA" has the meaning set forth in the Credit Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means $.01 per share of the Class C Common Stock,
subject to adjustment pursuant to Article IV.
"Fair Market Value" as at any date of determination means the fair
market value of the business or property or services in question as of such
date, as determined in good faith by the Board of Directors of the Company or
otherwise in accordance with Section 3.3 hereof. The Fair Market Value of the
Company as at any date of determination shall be the greatest of (i) the Fair
Market Value at such date of the Company and its Subsidiaries (not including any
direct or indirect interest in Advanced) as a going concern, (ii) the
liquidation value at such date of the Company and its Subsidiaries (not
including any direct or indirect interest in Advanced), (iii) the consolidated
net worth of the Company and its Subsidiaries (not including any direct or
indirect interest in Advanced) as shown on its latest available consolidated
balance sheet of the Company, and (iv) the result of: (A) EBITDA of the Borrower
and its Subsidiaries for the twelve consecutive months recently ended prior to
such date multiplied by 8 plus (B) cash and cash equivalents at such date minus
(C) Consolidated Total Debt at such date. Notwithstanding the foregoing, (x) if,
at any date of determination by the Company of the Fair Market Value of the
Company, the Common Stock shall then be publicly traded following a Qualified
IPO, the Fair Market Value of the Company on such date shall be the Market Price
on such date multiplied by the number of shares of Common Stock then outstanding
or (y) if the determination is being made in respect of an IPO Redemption, the
Fair Market Value of the Company on such date shall be 100% of the per share
price to be paid in the IPO, multiplied by the number of shares of Common Stock
then outstanding. Determination of the Fair Market Value of the Company per
share of Common Stock, shall be made without giving effect to any discount for
(i) minority interests or (ii) the voting status of the Class C Common Stock.
16
"Fully Diluted Basis" means, with respect to any determination or
calculation, that such determination or calculation is performed on a fully
diluted basis determined in accordance with generally accepted accounting
principles as in effect from time to time.
"Holder" has the meaning set forth in the first paragraph of this
Warrant.
"IPO Redemption" has the meaning set forth in Section 5.2 hereof.
"Market Price" as at any date of determination means the average of
the daily Closing Prices of a share of Common Stock for the shorter of (i) the
20 consecutive Business Days ending on the most recent Business Day prior to the
Time of Determination and (ii) the period commencing on the date next succeeding
the first public announcement of the issuance, sale, distribution, grant or
exercise in question through such most recent Business Day prior to the Time of
Determination. "Time of Determination" means the time and date of the earliest
of (x) the determination of the stockholders entitled to receive such issuance,
sale, distribution or grant, (y) the determination of the Holders or the Company
to exercise their respective rights set forth in Section 5.2 or 5.3 hereof, and
(z) the commencement of "ex-dividend" trading in respect thereof.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Options" has the meaning set forth in Section 4.3(b).
"Optional Redemption Price" means, as of any date of determination, a
price for each share of Class C Common Stock issuable upon exercise of the
Warrants equal to 110% of the Redemption Price, determined as of such date;
provided that in the case of an IPO Redemption, such price shall equal 100% of
the Redemption Price.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any government
agency or political subdivision thereof.
"Qualified IPO" means any sale of shares of Common Stock by and for
the account of the Company for a purchase price of not less than $3.00 pursuant
to an underwritten initial public offering registered under the Securities Act;
provided that the proceeds to the Company (net of underwriters' discount, fees
--------
and other expenses incurred by the Company in connection therewith) from such
sale of shares exceeds $25,000,000.
"Redemption Due Date" has the meaning set forth in Section 5.2 hereof.
"Redemption Price" means, as of any date of determination, a price for
each share of Class C Common Stock issuable upon exercise of the Warrants equal
to the excess of (a)(i) the Fair Market Value of the Company plus the aggregate
Exercise Price of all Warrants either being redeemed or then outstanding and not
being redeemed divided by (ii) the number
17
of shares of Common Stock outstanding on a Fully Diluted Basis over (b) the
Exercise Price then in effect.
"Refinancing Notice" has the meaning set forth in Section 5.5 hereof.
"Refinancing Redemption" has the meaning set forth in Section 5.2
hereof.
"Regulation Y Holder" means the Holder or a holder of Warrant Shares,
if such Holder or holder of Warrant Shares is a bank holding company within the
meaning of the BHC Act or a subsidiary thereof subject to Regulation Y under the
BHC Act.
"Required Interest" has the meaning set forth in Section 3.3(a).
"Securities Act" means the Securities Act of 1933, as amended, and any
successor Federal statute and the rules and regulations of the Securities and
Exchange Commission (or its successors) thereunder, all as the same shall be in
effect from time to time.
"Special Dividend" has the meaning set forth in Section 4.4.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, association or other business entity of which more than 50% of the
total voting power of shares of stock or other interests therein entitled to
vote in the election of members of the board of directors, partnership
committee, board of managers or trustees or other managerial body thereof is at
the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person or a combination thereof.
"Third Party Transaction" shall mean a bona-fide negotiated
transaction approved by the Board of Directors of the Company in good faith
involving the purchase or sale of assets and/or stock (whether by sale of stock,
assets, merger, consolidation, or otherwise) of the Company by another Person or
an acquisition by the Company of assets or stock (whether by sale of stock,
assets, merger, consolidation, or otherwise) of another Person if such Person is
not an Affiliate of the Company.
"Warrant Agency" has the meaning set forth in Section 2.1.
"Warrant Shares" means the shares of Class C Common Stock issuable
upon the exercise of the Warrants.
"Warrantholder" means a holder of a Warrant.
"Warrantholders Rights Agreement" has the meaning set forth in Section
3.1.
"Warrants" has the meaning set forth in the second paragraph of this
Warrant.
All references herein to "days" shall mean calendar days unless
otherwise specified.
18
ARTICLE VII
MISCELLANEOUS
7.1. Notices. Notices and other communications provided for herein
-------
must be in writing and may be given by mail, courier, confirmed telex or
facsimile transmission and shall, unless otherwise expressly required, be deemed
given when received or, if mailed, four Business Days after being deposited in
the United States mail with postage prepaid and properly addressed. In the case
of the Holder, such notices and communications shall be addressed to its address
as shown on the books maintained by the Warrant Agency, unless the Holder shall
notify the Warrant Agency that notices and communications should be sent to a
different address (or telex or facsimile number), in which case such notices and
communications shall be sent to the address (or telex or facsimile number)
specified by the Holder.
7.2. Waivers; Amendments. No failure or delay of the Holder in
-------------------
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice or demand on the Company in any case shall entitle
the Company to any other or future notice or demand in similar or other
circumstances. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and the holders of Warrants entitling
such holders to purchase a majority of the Common Stock subject to purchase upon
exercise of such Warrants at the time outstanding (exclusive of Warrants then
owned by the Company or any Subsidiary (as defined in the Credit Agreement) or
Affiliate (as defined in the Credit Agreement) thereof); provided, however, that
no such amendment, modification or waiver shall, without the written consent of
the holders of all Warrants at the time outstanding, (a) change the number of
shares of Class C Common Stock subject to purchase upon exercise of this
Warrant, the Exercise Price or provisions for payment thereof or (b) amend,
modify or waive the provisions of this Section or Article III or IV or Section
1.5, 5.2, 5.3 or 5.5. The provisions of the Credit Agreement and the
Warrantholders Rights Agreement may be amended, modified or waived only in
accordance with the respective provisions thereof.
Any such amendment, modification or waiver effected pursuant to and in
accordance with the provisions of this Section or the applicable provisions of
the Credit Agreement or the Warrantholders Rights Agreement shall be binding
upon the holders of all Warrants and Warrant Shares, upon each future holder
thereof and upon the Company. In the event of any such amendment, modification
or waiver, the Company shall give prompt notice thereof to all holders of
Warrants and Warrant Shares and, if appropriate, notation thereof shall be made
on all Warrants thereafter surrendered for registration of transfer or exchange.
7.3. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED IN ACCORDANCE WITH
-------------
AND GOVERNED BY THE LAWS OF
19
THE STATE OF GEORGIA (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW).
7.4. Transfer; Covenants to Bind Successor and Assigns. All covenants,
-------------------------------------------------
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company or the Holder shall bind its successors and assigns, whether so
expressed or not. This Warrant shall be transferable and assignable by the
Holder hereof in whole or from time to time in part to any other Person and the
provisions of this Warrant shall be binding upon and inure to the benefit of the
Holder hereof and its successors and assigns.
7.5. Severability. In case any one or more of the provisions
------------
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
7.6. Section Headings. The section headings used herein are for
----------------
convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
7.7. Tax Basis. The Company and the Holder agree pursuant to Proposed
---------
Treasury Regulation Section 1.1273-2 that, for Federal income tax purposes, the
aggregate issue price of the Loans (as defined in the Credit Agreement) and the
aggregate purchase price for the Warrants are those set forth in Section 2.09 of
the Credit Agreement. Neither the Company nor the Holder hereof shall
voluntarily take (nor shall the Company permit the Company voluntarily to take)
any action inconsistent with the agreement set forth in this Section 7.7.
7.8. Right to Specific Performance. The Company acknowledges and
-----------------------------
agrees that in the event of any breach of the foregoing covenants and
agreements, the Holder would be irreparably harmed and could not be made whole
only by the award of monetary damages. Accordingly, the Company agrees that the
Holder, in addition to any other remedy to which the Holder may be entitled at
law or equity, will be entitled to seek and obtain an award of specific
performance of any of the foregoing covenants and agreements.
20
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized and
attested by its Secretary or an Assistant Secretary, all as of the day and year
first above written.
MCR HOLDINGS, INC.
By:___________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Attest:
________________________________
Xxxx X. Xxxxxx
Secretary
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