Exhibit 4.4
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of September 1, 1987, among GCA
Corporation (the "Company"), a Delaware corporation, having its principal
place of business at 0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, and
Xxxx Zeiss, Inc. ("Zeiss"), a New York corporation having its principal
place of business at 0 Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
WITNESSETH:
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WHEREAS, GCA and Zeiss are parties to a certain Agreement dated
as of September 1, 1987 (the "Lens Supply Agreement"); and
WHEREAS, it is a condition, among others, to the obligations of
Zeiss under the Lens Supply Agreement that GCA execute and deliver this
agreement relating to the issuance and sale of warrants ("Warrants") to
purchase shares of common stock, par value $.01 per share (the "Common
Stock"), of the Company;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company and Zeiss agree as
follows:
Section 1. Defined Terms. Capitalized terms used in this
Agreement, unless separately defined herein, shall have the meanings
ascribed to such terms in the Restructuring Agreement dated as of December
5, 1986 among the Company, Zeiss, The Hallwood Group Incorporated and
certain lenders to the Company.
Section 2. Form of Warrant. The Warrant shall be substantially in
the form attached as Exhibit A hereto.
Section 3. Number of Warrant Shares. The aggregate number of
Common Shares issuable upon the exercise of the Warrant ("Warrant Shares")
shall be 500,000. The Warrant will be exercisable at any time or from time
to time until September 1, 2002 at an exercise price of $13.32 per Warrant
Share. The number of Warrant Shares and the exercise price of the Warrant
Shares shall be subject to adjustment as provided in the Warrant.
Section 4. Issuance and Delivery of Warrant. Simultaneously with
the execution hereof, the Company shall execute, issue and deliver to Zeiss
a warrant for the exercise of 500,000 shares of Common Stock of the
Company.
Section 5. Reservation of Warrant Shares, Etc. The Company
covenants and agrees that, at all times following the issuance of the
Warrant to Zeiss, it shall cause to be reserved out of its holdings of
authorized and unissued Common Stock such number of shares of Common Stock
as shall be issuable upon the exercise of the Warrant then outstanding in
accordance with the terms of such Warrant and this Warrant Agreement.
Section 6. Replacement Warrants. In case any Warrant shall be at
any time mutilated, lost or destroyed, then, upon the production of such
mutilated Warrant (or the receipt of an affidavit of an officer of the
Holder as to the circumstances surrounding the loss or destruction of such
Warrant) and, in the case of the loss of a Warrant, the receipt of an
unsecured written agreement to indemnify the Company in the event of a loss
suffered by it as a result of the loss of such Warrant, the Company shall
execute and deliver a new Warrant of like tenor for that number of shares
of Common Stock for which such lost or mutilated Warrant could have been
exercised. Any stamp tax or other governmental charge payable upon the
issuance of any replacement Warrant shall be borne by the holder thereof.
Any replacement Warrants executed and delivered pursuant to this Section 6
shall be entitled to equal and proportionate benefits of this Warrant
Agreement with all other Warrants issued hereunder, whether or not the
allegedly lost or destroyed Warrant shall be enforceable by any person,
firm, corporation or other entity.
Section 7. Certain Expenses. The Company shall pay when due any
and all federal, state and local issue or transfer taxes which may be
payable in respect to the initial issuance by the Company of the Warrant,
and all federal, state or local issue or transfers taxes that may be
payable with respect to the initial issuance of the Warrant Shares. The
Company shall not be required to pay any tax that may be payable in respect
of any transfer of the Warrant or Warrant Shares or in respect of the
issuance of Warrant Shares to any person other than the registered holder
of such Warrant at the time of such exercise.
Section 8. Representation and Agreement of Zeiss; Transfers.
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(a) Zeiss hereby represents and warrants to the Company that it
is acquiring its Warrant for investment purposes only and not with a view
to the resale or distribution thereof.
(b) Zeiss and each successor holder of the Warrant, by the
acceptance thereof, agrees that prior to the exercise thereof, unless the
Warrant Shares have been registered under the Securities Act of 1933, as
amended (the "Act"), or any similar Federal statute for sale or other
disposition by such holder and a prospectus with respect thereto is
current, or unless such holder shall have delivered to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect
that no such registration is required, it will deliver to the Company a
written representation that it is acquiring the Warrant Shares for its own
account for investment purposes only and not with a view to the resale or
distribution thereof, subject to any requirement of law that its
disposition of such property be at all times within its control.
(c) Zeiss and each successor holder of the Warrant, by acceptance
thereof, covenants and agrees that it will not sell, transfer or dispose
(hereinafter, a "Disposition") of the Warrant (or any interest in any
Warrant) or any Common Stock issuable or issued upon the exercise of any
Warrant (or any interest in any such Common Stock), except in compliance
with the provisions of the Act and the rules and regulations promulgated
thereunder, or any similar Federal statute and rules and regulations
promulgated thereunder. With respect to any Disposition of the Warrant or
any Common Stock issued pursuant to the exercise of the Warrant or any
interest therein, unless a registration statement under the Act is
effective and the prospectus included therein is current, the holder of
such Warrant or Common Stock shall, as a condition of such Disposition,
provide the Company with (i) an appropriate opinion of counsel that the
proposed Disposition may be made without registration in form and substance
satisfactory to the Company, or (ii) a letter from the staff of the
Securities and Exchange Commission (the "Commission") or any similar
Federal regulatory body, to the effect that the staff will not recommend
that the Commission take any action if the proposed Disposition is made
without registration under the Act, or (iii) evidence satisfactory to the
Company (which, in appropriate circumstances, may include an opinion of
counsel, that such Disposition is in compliance with the provisions of Rule
144 (or any similar rule then in effect) promulgated under the Act.
(d) Each Warrant and each certificate for shares of Common Stock
that is the subject of such Warrant shall bear an appropriate legend to
reflect that the issuance thereof has not been registered under the Act,
and Zeiss and each successor holder of the Warrant, by acceptance thereof,
acknowledges the same.
(e) The Company shall be required to issue promptly a new Warrant
or Common Stock issued upon exercise of the Warrant (such Common Stock or
Warrant not to bear a restrictive legend if the Company reasonably
determines that such legend is not required in order to comply with
applicable federal and state securities laws) if (i) a Disposition of a
Warrant or the Common Stock issued upon exercise of the Warrant is made
pursuant to a registration statement (including a current prospectus) that
is effective under the Act (such Warrant or Common Stock, as the case may
be, to be without a restrictive legend), or (ii) the staff of the
Commission shall have issued a letter to the effect that it will not
recommend that the Commission take any action if the proposed Disposition
is made without registration under the Act, or (iii) counsel to the holder
thereof shall have rendered its opinion, which opinion shall be reasonably
acceptable to the Company, that the Disposition of such securities may be
made without registration under the Act, or (iv) the Company shall have
been furnished with evidence satisfactory to the Company (which, in
appropriate circumstances, may include an opinion of counsel) that the
Disposition of such securities is in compliance with Rule 144 (or any
similar rule then in effect) promulgated under the Act.
Section 9. Representations and Warranties of the Company. The
Company represents and warrants to Zeiss as follows:
(a) Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full corporate power and authority to own its
properties and carry on its business as it is now being conducted. The
Company is duly qualified as a foreign corporation and is in good standing
under the laws of each jurisdiction in which the conduct of its business or
the ownership of its assets requires such qualification, except where its
failure to be so qualified would not have a material adverse effect on the
business, properties, assets or financial condition of the Company and its
subsidiary, taken as a whole.
(b) Due Authorization; No Conflicts; Governmental Consents. This
Agreement has been duly authorized, executed and delivered by the Company
and this Agreement constitutes, and, upon execution, issuance and delivery
thereof, the Warrant will constitute, a valid and binding agreement of the
Company, enforceable in accordance with its terms. Neither the performance
of this Agreement and the consummation of the transactions contemplated
hereby, nor the issuance of any of the Warrant Shares upon exercise of the
Warrant, will result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company is a party or by which the
Company or any of its properties is bound, or under Articles of
Incorporation or By-Laws of the Company or under any statute, rule,
regulation or order of any governmental body or court applicable to the
Company, and no consent, approval, authorization or order of any court or
governmental body is required for the consummation by the Company of the
transactions on its part herein contemplated.
(c) Capitalization. The authorized capital stock of the Company
consists of (a) 750,000,000 shares of common stock, par value $.01 per
share (hereinafter referred to as the "Common Stock"), 9,467,642 shares of
which are validly issued and outstanding as of July 1, 1987, and (b)
1,000,000 shares of preferred stock, par value $1.00 per share, no shares
of which are issued or outstanding as of the date hereof. All of the issued
and outstanding shares of Common Stock are fully paid, non-assessable and
free of preemptive rights and no personal liability attaches to the
ownership thereof. Except (i) as disclosed in the Company's prospectus
dated February 11, 1987, (ii) as disclosed in the Company's Proxy Statement
dated Xxxxx 00, 0000, (xxx) for options to purchase an aggregate of 300,000
shares of the Common Stock of the Company dated July, 1987 granted to an
officer of the Company, and (iv) for outstanding warrants to purchase an
aggregate of 2,190,800 shares of the Common Stock of the Company issued
pursuant to the Restructuring Agreement dated as of December 5, 1986, among
the Company, The Hallwood Group Incorporated, certain lenders to the
Company and Zeiss, there is no existing option, warrant, call, commitment
or other agreement to which the Company is a party requiring, and there are
no convertible securities of the Company outstanding which upon conversion
would require, the issuance of any additional shares of Common Stock of the
Company or other securities convertible into shares of Common Stock or any
other equity security of the Company. The Warrant and the Warrant Shares
have been duly and validly authorized and reserved for issuance and, upon
issuance and payment for the Warrant Shares as provided in the Warrant, the
Warrant Shares will be duly and validly issued, fully-paid, non-assessable
and free of preemptive rights and no personal liability will attach to the
ownership thereof.
Section 10. Registration Rights. On the terms and subject to the
conditions of the Registration Agreement executed simultaneously herewith,
the Company agrees to provide the registration rights provided therein with
respect to the Warrant Shares.
Section 11. Rights of Parties Upon Sale of Warrant Shares. In the
event that the Warrant is exercised at any time by any Holder thereof, and
the Warrant Shares which are issued upon exercise thereof are subsequently
sold by the Warrant Holder for a price in excess of $24.00 per share,
subject to adjustment in accordance with Section 4 of Exhibit A hereto,
then in such event 50% of the net sales proceeds, after deducting fees and
commissions of sale and reasonable legal expenses borne by the Warrant
Holder, shall be remitted to the Company within thirty days after receipt
thereof by the Seller of the Warrant Shares.
Section 12. Governing Law. This agreement shall be governed by
the laws of the State of New York.
Section 13. Notices. All notices provided for herein shall be
given or made by certified mail or hand delivery, mailed or delivered to
the intended recipient at the address specified below its name on the
signature page hereof; or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when deposited in the mails or personally
delivered.
Section 14. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and each of said counterparts shall
for all purposes be deemed to be an original, and all such counterparts
shall constitute but one and the same instrument. This Agreement shall
become effective upon execution by both parties.
Section 15. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 16. Amendment; Waiver. This Agreement may be amended or
modified, and any provision of this Agreement may be waived, only by a
writing executed by both of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
GCA CORPORATION
By
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(Name and Title)
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
XXXX ZEISS, INC.
By
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(Name and Title)
0 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Corporation Secretary
