[DUPLICATE ORIGINAL]
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement"), dated as of October 1, 1997
is made by and between Xxxxx Company, a California corporation (the "Company"),
and Warner X. Xxxxx Living Trust (the "Grantee").
WHEREAS, the Company and the Grantee desire to set forth certain terms
and instructions regarding the issuance, division, transfer and exercise of the
Company's warrant to purchase shares of Class A Common Stock, no par value per
share, and shares of Common Stock, no par value per share (the "Capital Stock")
of the Company being granted to the Grantee in consideration of certain loans
made by Grantee to the Company;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. WARRANT.
1.1 GRANT OF WARRANTS. The Company hereby grants to the Grantee
warrants (the "Warrants") to purchase 12,000 shares of Class A Common Stock and
388,000 shares of Common Stock (together, the "Capital Stock"), subject to the
terms and conditions set forth herein. Each Warrant shall give the Grantee the
right to purchase one share of Capital Stock.
1.2 FORM OF CERTIFICATE. The Warrants shall be evidenced by a
certificate substantially in the form of EXHIBIT A hereto (the "Warrant
Certificate"), which shall evidence the right of the holder thereof to purchase
such number of shares of Capital Stock as are stated on the face of such Warrant
Certificate.
1.3 EXECUTION. The Warrant Certificate shall be executed on
behalf of the Company by its Chairman of the Board, President, Executive or
Senior Vice President or Chief Financial Officer, and by its Secretary or an
Assistant Secretary. The signature of any of such officers may be manual or
facsimile. If the Warrant Certificate bears the signatures of individuals who
were at any time the proper officers of the Company, such signatures shall bind
the Company, notwithstanding that any of such individuals shall have ceased to
hold such offices prior to the delivery of the Warrant Certificate or did not
hold such offices on the date of this Agreement.
1.4 LEGEND. So long as required thereunder, the Warrant
Certificate (including each Warrant Certificate issued upon the transfer or
partial exercise of the Warrants) and each certificate for shares of Capital
Stock issued upon exercise of the Warrants or the transfer of any such Capital
Stock, shall be stamped or otherwise imprinted as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH
RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii)
RULE 144 UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM
REGISTRATION UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES.
IN THE CASE OF TRANSFERS OR OTHER DISPOSITIONS MADE OTHERWISE THAN
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, THE
HOLDER SHALL, AT THE COMPANY'S REQUEST, PROVIDE TO THE COMPANY AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
A copy of this Agreement shall be filed with the Secretary of the Company and
shall be kept at its principal executive office.
SECTION 2. OWNERSHIP AND TRANSFERABILITY.
2.1 OWNERSHIP. The Warrant Certificate shall be numbered and
shall be registered in the books of the Company (the "Warrant Register")
maintained at the principal office of the Company at the address specified in
Section 10 hereof. The Company shall be entitled to treat the registered
holder of the Warrant (the "Holder") whose name appears in the Warrant
Register as the owner in fact thereof for all purposes (notwithstanding any
notation of ownership or other writing thereon made by anyone or any notice
to the contrary).
2.2 TRANSFERABILITY. Title to the Warrant Certificate may be
transferred only by endorsement (by the Holder executing the form of assignment
attached hereto as EXHIBIT B) and delivery in the same manner as in the case of
a negotiable instrument transferable by endorsement and delivery. Any attempted
disposition made in violation of the terms of this Agreement shall automatically
be null and void.
SECTION 3. TERM OF WARRANTS; EXERCISE OF WARRANTS.
3.1 TERM OF WARRANTS. Subject to the terms of this Agreement, the
Warrant may be exercised, at any time after the date hereof, in whole and from
time to time in part, at the option of the Holder, until 5:00 p.m., Los Angeles
time, on September 30, 2012 (the "Expiration Date").
3.2 EXERCISE OF WARRANT. Warrants shall be exercised, in whole or
in part, by the Holder surrendering the Warrant Certificate with the form of
election to purchase attached thereto duly executed by such Holder, to the
Company at its principal office,
2
accompanied by payment, by wire transfer or by certified or cashier's check,
of the purchase price payable in respect of the Capital Stock issuable upon
exercise of the Warrants evidenced by the Warrant Certificate being
purchased. If less than all of the Capital Stock issuable upon exercise of
the Warrants evidenced by the Warrant Certificate is purchased, the Company
will, upon such exercise, execute and deliver to the Holder a new Warrant
Certificate (dated the date of the original Warrant Certificate) evidencing
the number of shares of Capital Stock not so purchased. As soon as
practicable after such exercise and payment of the purchase price, the
Company will cause to be issued in the name of and delivered to the Holder,
or as the Holder may direct, a certificate or certificates representing the
shares of Capital Stock purchased upon such exercise.
3.3 NO FRACTIONAL SHARES. No fractional shares shall be issued
upon exercise of the Warrants. In lieu of any fractional share to which the
Holder would otherwise be entitled, the Company shall pay a cash adjustment in
an amount equal to the same fraction of the Fair Market Value (as defined in
Section 7) per share of Capital Stock on the day of exercise.
SECTION 4. REPLACEMENT OF WARRANT CERTIFICATE. On receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of a Warrant Certificate and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory in
form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of the mutilated Warrant Certificate, the Company at its
expense shall execute and deliver, in lieu of the Warrant Certificate, a new
Warrant Certificate of the same form and amount.
SECTION 5. RESERVATION OF SHARES. A number of shares of Capital Stock
sufficient to provide for the exercise of the Warrants upon the terms of
exercise set forth herein and in the Warrant Certificate shall at all times be
reserved out of the Company's authorized but unissued shares of Capital Stock.
SECTION 6. CANCELLATION OF WARRANT. If the Company purchases or
otherwise acquires a Warrant Certificate, the same shall thereupon be cancelled.
The Company shall cancel any Warrant Certificate surrendered for exchange,
substitution, transfer or exercise in whole or in part. Cancelled Warrant
Certificates shall thereafter be disposed of in a manner satisfactory to the
Company.
SECTION 7. CONVERTED WARRANT. At its option, the Holder may request
pursuant to this Section 7 that the Company exchange the Warrant Certificate for
a particular number of shares of Capital Stock subject to the Warrants (the
"Converted Warrant Shares") by delivering to the Holder, without payment by the
Holder of any cash or other consideration as exercise price, that number of
shares of Capital Stock equal to the quotient obtained by dividing the Net Value
(as hereinafter defined) of the Converted Warrant Shares by the Fair Market
Value (as defined below) of a single share of Capital Stock, determined in each
case as of the close of business on the date of exercise. The "Net Value" of
Converted Warrant Shares shall equal (A) the aggregate Fair Market Value of the
Converted Warrant Shares (i.e.
3
the Fair Market Value per share for the Converted Warrant Shares times the
number of Converted Warrant Shares) minus (B) the aggregate exercise price
for the Converted Warrant Shares (i.e. the exercise price per share for the
Converted Warrant Shares times the number of Converted Warrant Shares). The
"Fair Market Value" of Converted Warrant Shares shall equal (i) the average
of (X) the daily closing prices per share of Capital Stock for the five
trading days immediately preceding the date of exercise or exchange on the
principal stock exchange or over-the-counter market on which the Capital
Stock is traded or (Y) the average of the closing bid and ask prices per
share of Capital Stock for such five trading days if the Capital Stock is
then traded in a market for which such prices are readily available and daily
closing prices are not readily available, or (ii) that value per share of
Capital Stock determined by the Board of Directors of the Company acting in
good faith if the Capital Stock is not then traded on a stock exchange or
over-the-counter market for which either such prices are readily available.
For purposes of this Section 7, all references to the "Capital Stock" shall
refer to the shares of Class A Common Stock or Common Stock, as applicable,
evidenced by the Warrant Certificate or sought to be delivered by the
Company. All other provisions of the Warrant shall apply to any such
exchange of the Warrant pursuant to the terms of this Section 7.
SECTION 8. ADJUSTMENTS.
8.1 CALCULATION OF ADJUSTMENT.
4
(a) MERGER, SALE OF ASSETS, ETC. If at any time while these
Warrants, or any portion thereof, are outstanding and unexpired there shall be
(i) a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of Capital Stock outstanding
immediately prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash, or otherwise, or (iii) a sale
or transfer of the Company's properties and assets as, or substantially as, an
entirety to any other person, then, as part of such reorganization, merger,
consolidation, sale or transfer, lawful provision shall be made so that the
Holder of Warrants shall thereafter be entitled to receive upon exercise of each
Warrant, during the period specified therein and upon payment of the Exercise
Price then in effect, the number of shares of stock or other securities or
property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the share of Capital
Stock deliverable upon exercise of the Warrant would have received in such
reorganization, consolidation, merger, sale or transfer if the Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to any further adjustment required by this Section 8.1.
The foregoing provisions of this Section 8.1 shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporation that are at the time receivable upon the
exercise of the Warrants. If the per-share consideration payable to the holders
of Capital Stock in connection with any such transaction is in a form other than
cash or marketable securities, then the value of such consideration shall be
determined in good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of this provision and the other
provisions of the Warrants and Warrant Certificate with respect to the rights
and interests of the Holder after the transaction, to the end that all such
provisions shall be applicable after that event, as near as reasonably may be,
in relation to any shares or other property that may become deliverable after
that event upon exercise of the Warrants.
(b) RECLASSIFICATION, ETC. If, at any time while these Warrants,
or any portion thereof, are outstanding and unexpired, the Company shall change,
by reclassification of securities or otherwise, any of the securities as to
which purchase rights under the Warrants exist into the same or a different
number of securities of any other class or classes, each Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under the Warrant
immediately prior to such reclassification or other change, and the Exercise
Price (as defined in the Warrant Certificate) therefor shall be appropriately
adjusted, all subject to any further adjustment required by this Section 8.1.
(c) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company,
at any time while the Warrants, or any portion thereof, are outstanding and
unexpired, shall split, subdivide or combine the shares of Capital Stock into a
different number of securities of the same class, the Exercise Price shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination. When any adjustment is
5
required to be made to the initial or adjusted Exercise Price, the Company shall
forthwith determine the new Exercise Price, prepare and retain on file a
statement describing in reasonable detail the method used in arriving at the new
Exercise Price, and cause a copy of such statement to be mailed to each Holder
of Warrants within ten (10) days of such determination.
(d) ADJUSTMENTS FOR DIVIDENDS IN STOCK OR OTHER SECURITIES OR
PROPERTY. If, at any time while the Warrants, or any portion hereof, are
outstanding and unexpired, the holders of the securities issuable upon exercise
thereof shall have received, or on or after the record date fixed for the
determination of eligible stockholders shall have become entitled to receive,
without payment therefor, other or additional stock or other securities or
property (other than cash) of the Company, by way of dividend or other
distribution, then and in each case, such Warrant shall thereafter represent the
right to acquire, in addition to the number of shares of the security issuable
upon exercise of such Warrant, and without payment by the Holder of any
additional consideration therefor, the amount of such other or additional stock
or other securities or property (other than cash) of the Company that such
Holder would have held on the date of such exercise had such Holder been the
holder of record of the security receivable upon exercise of such Warrant on the
date of this Agreement and had thereafter, during the period from the date of
this Agreement to and including the date of such exercise, retained such shares
and/or all other additional stock available to it as aforesaid during such
period, giving effect to all adjustments called for during such period by the
provisions of this Section 8.1.
8.2 STATEMENT ON WARRANT. Irrespective of any adjustments in the
Exercise Price, the Warrant Certificate theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrant Certificate initially issuable pursuant to this Agreement.
SECTION 9. NO RIGHTS AS SHAREHOLDERS. Neither the Warrants nor any
Warrant Certificate shall confer upon the Grantee, the Holder, or any transferee
thereof, as holder of Warrants, the right to vote, to receive dividends or other
distributions, to consent or to receive notice as a shareholder in respect of
any meeting of shareholders, or any other rights whatsoever as a shareholder of
the Company. Nothing in this Section affects the rights of any person as a
holder of Capital Stock.
SECTION 10. NOTICES. All notices or communications hereunder shall be
in writing, addressed as follows:
6
if to the Company:
Xxxxx Company
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
if to the Grantee:
Warner X. Xxxxx Living Trust
c/o Henry Group of Companies
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention:
Fax No.: (000 ) 000-0000
Any such notice or communication shall be deemed given (i) when made,
if made by hand delivery or by fax with confirmation of transmission, (ii) one
business day after being deposited with a next-day courier, postage prepaid, or
(iii) three business days after being sent certified or registered mail, return
receipt requested, postage prepaid, in each case addressed as above (or to such
other address as such party may designate in writing from time to time).
SECTION 11. AMENDMENT. The Company may from time to time supplement,
modify or amend this Agreement, and waivers or consents to departures from the
provisions hereof may be given, without the approval of any Holder, 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 may deem necessary or desirable and which shall not adversely
affect the interest of the Holder. Except as provided above, this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, without the written consent of the
Holder and the Company.
SECTION 12. MERGER OR CONSOLIDATION OF THE COMPANY. The Company will
not merge or consolidate with or into any other corporation unless the
corporation resulting from such merger or consolidation (if not the Company)
shall expressly assume, by supplemental agreement, the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed and observed by the Company.
7
SECTION 13. GOVERNING LAW. This Agreement shall be construed,
interpreted and governed in accordance with the laws of the State of California
without regard to its conflicts-of-law provisions.
SECTION 14. ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns, subject to the restrictions upon
transfer and assignment as set forth herein or in the Shareholders Agreement
referred to herein.
SECTION 15. SEVERABILITY. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
SECTION 16. ENTIRE AGREEMENT. This Agreement represents the entire
agreement of the parties and shall supersede any and all previous contracts,
agreements or understandings between the parties hereto with respect to the
subject matter hereof.
SECTION 17. INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
8
IN WITNESS WHEREOF, the parties hereto have duly executed it on the
day and year first above written.
XXXXX COMPANY, a California corporation
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
By: Xxxxxxx X. Xxxxx
-------------------------------------
Its: Secretary and Chief Financial Officer
-------------------------------------
Attest:
WARNER X. XXXXX LIVING TRUST
Secretary
By: /s/ Warner X. Xxxxx
----------------------------------
Warner X. Xxxxx
Its:
----------------------------------
9
EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE OFFERED,
SOLD, OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
SUCH ACT, (ii) RULE 144 UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM
REGISTRATION UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES. IN THE
CASE OF TRANSFERS OR OTHER DISPOSITIONS MADE OTHERWISE THAN PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, THE HOLDER SHALL, AT THE
COMPANY'S REQUEST, PROVIDE TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS AND
ENTITLED TO THE BENEFITS OF A WARRANT AGREEMENT, DATED AS OF OCTOBER 1, 1997. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY.
No. ______________________ Warrant to Purchase _________ Shares
of Common Stock
_________ Shares
of Class A Common Stock
THIS CERTIFIES that ___________________________ or registered
assigns is the registered holder (the "Holder") of warrants (the "Warrants")
to purchase _______ shares of Class A Common stock, ___ par value per share,
and _______ shares of Common stock, ___ par value per share (together, the
"Capital Stock"), of Xxxxx Company, a California corporation (the "Company"),
on the terms set forth in that certain Warrant Agreement, dated as of October
1, 1997 (the "Warrant Agreement"), between the Company and
__________________, at any time on or before the Expiration Date (defined
below), by surrendering this Warrant Certificate, with the form of election
to purchase set forth hereon duly executed, at the principal office of the
Company, and by paying in full a price per share set forth on Exhibit A (as
adjusted in accordance with the terms of the Warrant Agreement) (the
"Exercise Price").
Payment of the Exercise Price may be made by the Holder hereof in
United States currency by certified or cashier's check or by wire transfer to
the Company or by the exchange of shares of Capital Stock valued at the Fair
Market Value thereof (determined in accordance with the terms of the Warrant
Agreement).
Subject to the terms contained in the Warrant Agreement, this Warrant
may be exercised, at any time after October 1, 1997, in whole and from time to
time in part, at the option of the Holder hereof, until 5:00 p.m., Los Angeles
time on, October 1, 2012 (the "Expiration Date"). The Warrant may not be
exercised after the Expiration Date and shall thereafter become void.
Upon the purchase of less than all of the shares of Capital Stock
purchasable upon exercise of all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the Holder a new Warrant Certificate
representing Warrants to purchase the shares of Capital Stock not purchased.
Prior to the Expiration Date, the Holder shall be entitled to exchange
this Warrant Certificate, with or without other Warrant Certificates, for
another Warrant Certificate or Warrant Certificates representing the right to
purchase the same number of shares, upon surrender of this Warrant Certificate
at the principal office of the Company.
Upon certain events provided for in the Warrant Agreement, the
Exercise Price and the kind and amount of securities purchasable upon the
exercise of Warrants are required to be adjusted.
No fractional shares will be issued upon the exercise of Warrants. As
to any final fraction of a share that the Holder of one or more Warrant
Certificates, the rights under which are exercised in the same transaction,
would otherwise be entitled to purchase upon such exercise, the Company shall
pay the cash value thereof determined as provided in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement and is subject to the terms and provisions contained in said
Warrant Agreement, to all of which terms and provisions the Holder consents by
acceptance hereof. Capitalized terms not otherwise defined in this Warrant
Certificate shall have the meaning given thereto in the Warrant Agreement.
This Warrant Certificate shall not entitle the Holder to any of the
rights of a shareholder of the Company, including, without limitation, the right
to vote, to receive dividends and other distributions, or to attend or receive
any notice of meetings of shareholders or any other proceedings of the Company.
This Warrant Certificate shall be construed, interpreted and governed
by the laws of the State of California without regard to its conflicts-of-law
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Attest: By:________________________________________
Name:_________________________________
Title:________________________________
_________________________
Secretary
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate and to purchase shares of
Class A Common Stock and / or
shares of Common Stock issuable upon such exercise, and requests
that Certificates for such shares be issued and delivered as follows:
ISSUE TO: __________________________________________
(Name)
(Address, Including Zip Code)
(Social Security or Tax Identification Number)
DELIVER TO: __________________________________________
(Name)
(Address, Including Zip Code)
In payment of the purchase price with respect to Warrants exercised
the undersigned hereby tenders payment of $__________ in accordance with the
terms of the Warrant Agreement. If the number of shares purchased hereby is
fewer than all the shares purchasable upon exercise of all of the Warrants
represented by this Warrant Certificate, the undersigned requests that a new
Warrant Certificate representing the remaining number of shares purchasable upon
exercise of the remaining Warrants be issued and delivered as set forth below:
Name of Warrantholder or Assignee:____________________
(Please Print)
Address:_____________________________________
Signature:_____________________________________ Dated:_______________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
Signature Guaranteed:___________________
EXHIBIT B
ASSIGNMENT FORM
To assign Warrants, fill in the form below: (I) or (we) assign and
transfer this Warrant to
______________________________________________________________________________
(Insert Assignee's social security or Tax ID number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________ to transfer such Warrants
on the books of the Company. The agent may substitute another to act for him.
__________________________________________
Signature(s)
__________________________________________
Note: The above signature(s) must
correspond with the name written upon
the face of this Warrant Certificate in
every particular, without alteration or
enlargement or any change whatsoever.
If this Warrant Certificate is held of
record by two or more joint owners, all
such owners must sign.
___________________
Date
___________________________________
Signature Guaranteed*
*Note: The signature must be guaranteed by an institution which is a member
or one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallion Program
(STAMP);
(2) The New York Stock Exchange Medallion Program
(MSP); or
(3) The Stock Exchange Medallion Program (SEMP).
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE OFFERED,
SOLD, OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
SUCH ACT, (ii) RULE 144 UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM
REGISTRATION UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES. IN THE
CASE OF TRANSFERS OR OTHER DISPOSITIONS MADE OTHERWISE THAN PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, THE HOLDER SHALL, AT THE
COMPANY'S REQUEST, PROVIDE TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS AND
ENTITLED TO THE BENEFITS OF A WARRANT AGREEMENT, DATED AS OF OCTOBER 1, 1997. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY.
No. 1 Warrant to Purchase 12,000 Shares
___________ Common Stock
388,000 Shares
of Class A Common Stock
THIS CERTIFIES that the Warner X. Xxxxx Living Trust or registered
assigns is the registered holder (the "Holder") of warrants (the "Warrants") to
purchase 12,000 shares of Class A Common Stock, no par value per share, and
388,000 shares of Common Stock, no par value per share (together, the "Capital
Stock"), of Xxxxx Company, a California corporation (the "Company"), on the
terms set forth in that certain Warrant Agreement, dated as of October 1, 1997
(the "Warrant Agreement"), between the Company and the Holder, at any time on or
before the Expiration Date (defined below), by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon duly
executed, at the principal office of the Company, and by paying the applicable
price per share for such Capital Stock (depending on the date of exercise) as
set forth on Exhibit A hereto (as adjusted in accordance with the terms of the
Warrant Agreement) (the "Exercise Price").
Payment of the Exercise Price may be made by the Holder hereof in
United States currency by certified or cashier's check or by wire transfer to
the Company or by the exchange of shares of Capital Stock valued at the Fair
Market Value thereof (determined in accordance with the terms of the Warrant
Agreement).
Subject to the terms contained in the Warrant Agreement, this Warrant
may be exercised, at any time after October 1, 1997, in whole and from time to
time in part, at the option of the Holder hereof, until 5:00 p.m., Los Angeles
time on, September 30, 2012 (the "Expiration Date"). The Warrant may not be
exercised after the Expiration Date and shall thereafter become void.
Upon the purchase of less than all of the shares of Capital Stock
purchasable upon exercise of all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the Holder a new Warrant Certificate
representing Warrants to purchase the shares of Capital Stock not purchased.
Prior to the Expiration Date, the Holder shall be entitled to exchange
this Warrant Certificate, with or without other Warrant Certificates, for
another Warrant Certificate or Warrant Certificates representing the right to
purchase the same number of shares, upon surrender of this Warrant Certificate
at the principal office of the Company.
Upon certain events provided for in the Warrant Agreement, the
Exercise Price and the kind and amount of securities purchasable upon the
exercise of Warrants are required to be adjusted.
No fractional shares will be issued upon the exercise of Warrants. As
to any final fraction of a share that the Holder of one or more Warrant
Certificates, the rights under which are exercised in the same transaction,
would otherwise be entitled to purchase upon such exercise, the Company shall
pay the cash value thereof determined as provided in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement and is subject to the terms and provisions contained in said
Warrant Agreement, to all of which terms and provisions the Holder consents by
acceptance hereof. Capitalized terms not otherwise defined in this Warrant
Certificate shall have the meaning given thereto in the Warrant Agreement.
This Warrant Certificate shall not entitle the Holder to any of the
rights of a shareholder of the Company, including, without limitation, the right
to vote, to receive dividends and other distributions, or to attend or receive
any notice of meetings of shareholders or any other proceedings of the Company.
This Warrant Certificate shall be construed, interpreted and governed
by the laws of the State of California without regard to its conflicts-of-law
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
XXXXX COMPANY, a California
corporation
Attest: By: _____________________________________
Name: ______________________________
Title: ______________________________
_________________________
Secretary
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate and to purchase shares of
Class A Common Stock and / or
shares of Common Stock issuable upon such exercise, and requests
that Certificates for such shares be issued and delivered as follows:
ISSUE TO: _____________________________________
(Name)
(Address, Including Zip Code)
(Social Security or Tax Identification Number)
DELIVER TO: _____________________________________
(Name)
(Address, Including Zip Code)
In payment of the purchase price with respect to Warrants exercised
the undersigned hereby tenders payment of $__________ in accordance with the
terms of the Warrant Agreement. If the number of shares purchased hereby is
fewer than all the shares purchasable upon exercise of all of the Warrants
represented by this Warrant Certificate, the undersigned requests that a new
Warrant Certificate representing the remaining number of shares purchasable upon
exercise of the remaining Warrants be issued and delivered as set forth below:
Name of Warrantholder or Assignee:___________________
(Please Print)
Address:_______________________________________
Signature:___________________________________ Dated:________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
Signature Guaranteed:_________________
EXHIBIT A
XXXXX COMPANY
SHARES AVAILABLE FOR PURCHASE
UPON EXERCISE OF WARRANTS:
CLASS A COMMON STOCK 12,000
COMMON STOCK 388,000
PRICE PER SHARE
---------------
DATE OF CLASS A
WARRANT EXERCISE COMMON STOCK - $ COMMON STOCK - $
----------------- ---------------- ----------------
October 1, 1997 to September 30, 2002 12.94 12.94
October 1, 2002 to September 30, 2003 15.53 15.53
October 1, 2003 to September 30, 2004 18.12 18.12
October 1, 2004 to September 30, 2005 20.71 20.71
October 1, 2005 to September 30, 2006 23.29 23.29
October 1, 2006 to September 30, 2007 25.88 25.88
October 1, 2007 to September 30, 2008 28.47 28.47
October 1, 2008 to September 30, 2009 31.06 31.06
October 1, 2009 to September 30, 2010 33.65 33.65
October 1, 2010 to September 30, 2011 36.24 36.24
October 1, 2011 to September 30, 2012 38.82 38.82
