XXXXXXX HOLDINGS CO.
[FORM OF]
CLASS A WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF XXXXXXX HOLDINGS CO.
CLASS A
NO.[___] WARRANT TO PURCHASE
[_______] SHARES
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET FORTH IN THE
INVESTORS' AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED
UPON REQUEST FROM THE COMPANY.
FOR VALUE RECEIVED, XXXXXXX HOLDINGS CO., a Delaware corporation
(the "COMPANY"), hereby certifies that [_______________________________,
L.P.,] its successor or permitted assigns (the "Holder"), is entitled, subject
to the provisions of this Class A Warrant, to purchase from the Company, at
the times specified herein, [_____] fully paid and non-assessable shares of
common stock of the Company, par value $ 0.01 per share (the "WARRANT
SHARES"), at a purchase price per share equal to the Exercise Price (as
hereinafter defined). The number of Warrant Shares to be received upon the
exercise of this Class A Warrant and the price to be paid for a Warrant Share
are subject to adjustment from time to time as hereinafter set forth.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following meanings:
"AFFILIATE" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of the
Company or other capital stock of the Company that is not preferred as to
liquidation or dividends or any other security for which this Warrant may be
exercised pursuant to Section (i) hereof after the occurrence of any of the
transactions described in such Section.
"DULY ENDORSED" means duly endorsed in blank by the Person or Persons in
whose name a stock certificate is registered or accompanied by a duly
executed stock assignment separate from the certificate with the signature(s)
thereon guaranteed by a commercial bank or trust company or a member of a
national securities exchange or of the National Association of Securities
Dealers, Inc.
"EXERCISE PRICE" means $0.01 per Warrant Share, such Exercise Price to
be adjusted from time to time as provided herein.
"EXPIRATION DATE" means August 28, 2009 at 5:00 p.m. New York City time.
"FAIR MARKET VALUE" means, with respect to one share of Common Stock on
any date, the Current Market Price Per Common Share as defined in paragraph
(h)(6) hereof.
"INVESTORS' AGREEMENT" means the Amended and Restated Investors'
Agreement dated as of the date hereof among the Company, DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore
Partners II, C.V., DLJ Diversified Partners, L.P., DLJ Diversified
Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., DLJMB Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB
Partners, L.P., DLJ ESC II L.P. and DLJ First ESC L.P.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"PRINCIPAL HOLDERS" means, on any date, the Holders of at least 50% of
the Warrants.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement dated as of
the date hereof between the Company and the investors party thereto.
2
"TRANSFER" shall have the meaning assigned to such term in the
Investors' Agreement.
"Warrants" means the Class A Warrants issued to the subscribers under
the Subscription Agreement.
(2) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Investors' Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant in whole or
in part at any time, or from time to time, until the Expiration Date
or, if such day is not a Business Day, then on the next succeeding day
that shall be a Business Day. To exercise this Warrant, the Holder
shall execute and deliver to the Company a Warrant Exercise Notice
substantially in the form annexed hereto. No earlier than ten days
after delivery of the Warrant Exercise Notice, the Holder shall
deliver to the Company this Warrant Certificate duly executed by the
Holder, together with payment of the applicable Exercise Price;
PROVIDED, HOWEVER, that in connection with a public offering of the
Common Stock, a Holder may deliver the Warrant Exercise Notice and
this Warrant Certificate to the Company simultaneously. Upon such
delivery and payment, the Holder shall be deemed to be the holder of
record of the Warrant Shares subject to such exercise, notwithstanding
that the stock transfer books of the Company shall then be closed or
that certificates representing such Warrant Shares shall not then be
actually delivered to the Holder. Notwithstanding anything herein to
the contrary, in lieu of payment in cash of the applicable Exercise
Price, the Holder may elect (i) to receive upon exercise of this
Warrant, the number of Warrant Shares reduced by a number of shares of
Common Stock having the aggregate Fair Market Value equal to the
aggregate Exercise Price for the Warrant Shares, (ii) to deliver as
payment, in whole or in part of the aggregate Exercise Price, shares
of Common Stock having the aggregate Fair Market Value equal to the
applicable portion of the aggregate Exercise Price for the Warrant
Shares or (iii) to deliver as payment, in whole or in part of the
aggregate Exercise Price, such number of Warrants which, if exercised,
would result in a number of shares of Common Stock having an aggregate
Fair Market Value equal to the applicable portion of the aggregate
Exercise Price for the Warrant Shares. Notwithstanding anything to
the contrary in this paragraph (b)(1), if the aggregate Fair Market
Value of the
3
Common Stock applied or delivered pursuant to (i), (ii) or (iii) above
exceeds the aggregate Exercise Price, in no event shall the Holder be
entitled to receive any amounts from the Company.
(2) The Exercise Price may be paid in cash or by certified or
official bank check or bank cashier's check payable to the order of
the Company or by any combination of such cash or check. The Company
shall pay any and all documentary, stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of the Warrant
Shares.
(3) If the Holder exercises this Warrant in part, this Warrant
Certificate shall be surrendered by the Holder to the Company and a
new Warrant Certificate of the same tenor and for the unexercised
number of Warrant Shares shall be executed by the Company. The
Company shall register the new Warrant Certificate in the name of the
Holder or in such name or names of its transferee pursuant to
paragraph (f) hereof as may be directed in writing by the Holder and
deliver the new Warrant Certificate to the Person or Persons entitled
to receive the same.
(4) Upon surrender of this Warrant Certificate in conformity with
the foregoing provisions, the Company shall transfer to the Holder of
this Warrant Certificate appropriate evidence of ownership of the
shares of Common Stock or other securities or property (including any
money) to which the Holder is entitled, registered or otherwise placed
in, or payable to the order of, the name or names of the Holder or
such transferee as may be directed in writing by the Holder, and shall
deliver such evidence of ownership and any other securities or
property (including any money) to the Person or Persons entitled to
receive the same, together with an amount in cash in lieu of any
fraction of a share as provided in paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing shares of Common
Stock issued pursuant to this Warrant shall bear a legend substantially in
the form of the legend set forth on the first page of this Warrant
Certificate to the extent that and for so long as such legend is required
pursuant to the Investors' Agreement.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve for issuance and delivery upon exercise of this Warrant such
number of its authorized but unissued shares of Common Stock or other
securities of the Company from time to time issuable upon exercise of this
4
Warrant as will be sufficient to permit the exercise in full of this Warrant.
All such shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except to
the extent set forth in the Investors' Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in
lieu of delivery of any such fractional share upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Current Market Price Per Common Share (as defined in
paragraph (h)(6)) at the date of such exercise.
The Company further agrees that it will not change the par value of the
Common Stock from par value $0.01 per share to any higher par value which
exceeds the Exercise Price then in effect, and will reduce the par value of
the Common Stock upon any event described in paragraph (h) that (i) provides
for an increase in the number of shares of 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, but only to the extent that
such increase in the number of shares, together with all other such increases
after the date hereof, causes the aggregate Exercise Price of all Warrants
(without giving effect to any exercise thereof) to be greater than $1,550.00
or (ii) would, but for this provision, reduce the Exercise Price below the
par value of the Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to the
provisions of the Investors' Agreement, including the restrictions on
transfer. Each holder of this Warrant Certificate by holding the
same, consents and agrees that the registered holder hereof may be
treated by the Company and all other persons dealing with this Warrant
Certificate as the absolute owner hereof for any purpose and as the
person entitled to exercise the rights represented hereby. The Holder,
by its acceptance of this Warrant, will be subject to the provisions
of, and will have the benefits of, the Investors' Agreement to the
extent set forth therein, including the transfer restrictions and the
registration rights included therein.
(2) Subject to compliance with the transfer restrictions set forth
in the Investors' Agreement, upon surrender of this Warrant to the
Company, together with the attached Warrant Assignment Form duly
executed, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee or assignees
5
named in such instrument of assignment and, if the Holder's entire
interest is not being assigned, in the name of the Holder and this Warrant
shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the loss, theft, destruction or mutilation of this Warrant Certificate, and
(in the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant
Certificate, if mutilated, the Company shall execute and deliver a new
Warrant Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and
the number of shares of Common Stock for which this Warrant may be exercised
shall be subject to adjustment from time to time upon the occurrence of
certain events as provided in this paragraph (h); PROVIDED that
notwithstanding anything to the contrary contained herein, the Exercise Price
shall not be less than the par value of the Common Stock, as such par value
may be reduced from time to time in accordance with paragraph (e).
(1) In case the Company shall at any time after the date hereof
(i) declare a dividend or make a distribution on Common Stock payable
in Common Stock, (ii) subdivide or split the outstanding Common Stock,
(iii) combine or reclassify the outstanding Common Stock into a
smaller number of shares, or (iv) issue any shares of its capital
stock in a reclassification of Common Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the Exercise Price in
effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, split,
combination or reclassification shall be proportionately adjusted so
that, after giving effect to paragraph (h)(9), the exercise of this
Warrant after such time shall entitle the holder to receive the
aggregate number of shares of Common Stock or other securities of the
Company (or shares of any security into which such shares of Common
Stock have been reclassified pursuant to clause (iii) or (iv) above)
which, if this Warrant had been exercised immediately prior to such
time, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, distribution,
subdivision, split, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall
occur.
6
(2) In case the Company shall issue or sell any Common Stock
(other than Common Stock issued (I) upon exercise of the Warrants,
(II) upon exercise of any of the warrants to purchase an aggregate of
155,000 shares of Common Stock issued by the Corporation together with
its 12% Senior Subordinated Notes due 2008 on October 5, 1998 (the
"PUBLIC WARRANTS"), (III) upon exercise of any options or warrants to
purchase shares of Common Stock issued to any investor that becomes a
party to the Investors' Agreement within 90 days of the date hereof
(other than a DLJ Entity, as such term is defined in the Investors'
Agreement), (IV) pursuant to any Common Stock related employee
compensation plan of the Company approved by the Company's Board of
Directors, or (V) upon exercise or conversion of any security the
issuance of which caused an adjustment under paragraphs (h)(3) or
(h)(4) hereof), the Exercise Price to be in effect after such issuance
or sale shall be determined by multiplying the Exercise Price in
effect immediately prior to such issuance or sale by a fraction, the
numerator of which shall be the sum of (x) the number of shares of
Common Stock outstanding immediately prior to the time of such
issuance or sale multiplied by the Current Market Price Per Common
Share immediately prior to such issuance or sale and (y) the aggregate
consideration, if any, to be received by the Company upon such
issuance or sale, and the denominator of which shall be the product of
the aggregate number of shares of Common Stock outstanding immediately
after such issuance or sale and the Current Market Price Per Common
Share immediately prior to such issuance or sale but in no event will
such fraction exceed 1. In case any portion of the consideration to
be received by the Company shall be in a form other than cash, the
fair market value of such noncash consideration shall be utilized in
the foregoing computation. Such fair market value shall be determined
by the Board of Directors of the Company; PROVIDED that if the
Principal Holders shall object to any such determination, the Board of
Directors shall retain an independent appraiser reasonably
satisfactory to the Principal Holders to determine such fair market
value. The Holder shall be notified promptly of any consideration
other than cash to be received by the Company and furnished with a
description of the consideration and the fair market value thereof, as
determined by the Board of Directors.
(3) In case the Company shall fix a record date for the issuance
of rights, options or warrants to the holders of its Common Stock or
other securities entitling such holders to subscribe for or purchase
for a period expiring within 60 days of
7
such record date shares of Common Stock (or securities convertible into
shares of Common Stock) at a price per share of Common Stock (or having
a conversion price per share of Common Stock, if a security convertible
into shares of Common Stock) less than the Current Market Price Per
Common Share on such record date, the maximum number of shares of Common
Stock issuable upon exercise of such rights, options or warrants (or
conversion of such convertible securities) shall be deemed to have been
issued and outstanding as of such record date and the Exercise Price
shall be adjusted pursuant to paragraph (h)(2) hereof, as though such
maximum number of shares of Common Stock had been so issued for an
aggregate consideration payable by the holders of such rights, options,
warrants or convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration shall be in
a form other than cash, the fair market value of such noncash
consideration shall be determined as set forth in paragraph (h)(2)
hereof. Such adjustment shall be made successively whenever such record
date is fixed; and in the event (i) that such rights, options or
warrants are not so issued or expire unexercised, or (ii) of a change in
the number of shares of Common Stock to which the holders of such
rights, options or warrants are entitled (other than pursuant to
adjustment provisions therein which are no more favorable in their
entirety than those contained in this paragraph (h)), the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in
effect in the case of clause (i), if such record date had not been
fixed, or in the case of clause (ii), if such holders had initially been
entitled to such changed number of shares of Common Stock.
(4) In case the Company shall sell or issue rights, options
(other than (I) options issued to any investor that becomes a party to
the Investors' Agreement within 90 days of the date hereof (other than
a DLJ Entity, as such term is defined in the Investors' Agreement), or
(II) options issued pursuant to a plan described in clause (II) of
paragraph (h)(2)) or warrants entitling the holders thereof to
subscribe for or purchase Common Stock (or securities convertible into
shares of Common Stock) (other than warrants to purchase shares of
Common Stock issued to any investor that becomes a party to the
Investors' Agreement within 90 days of the date hereof (other than a
DLJ Entity, as such term is defined in the Investors' Agreement) and
other than the Public Warrants) or shall issue convertible securities,
and the price per share of Common Stock of such rights, options,
warrants or convertible securities
8
(including, in the case of rights, options or warrants, the price at
which they may be exercised) is less than the Current Market Price Per
Common Share, the maximum number of shares of Common Stock issuable upon
exercise of such rights, options or warrants or upon conversion of such
convertible securities shall be deemed to have been issued and
outstanding as of the date of such sale or issuance, and the Exercise
Price shall be adjusted pursuant to paragraph (h)(2) hereof as though
such maximum number of shares of Common Stock had been so issued for an
aggregate consideration equal to the aggregate consideration paid for
such rights, options, warrants or convertible securities and the
aggregate consideration payable by the holders of such rights, options,
warrants or convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration shall be in
a form other than cash, the fair market value of such noncash
consideration shall be determined as set forth in paragraph (h)(2)
hereof. Such adjustment shall be made successively whenever such
rights, options, warrants or convertible securities are issued; and in
the event (i) that such rights, options or warrants expire unexercised,
or (ii) of a change in the number of shares of Common Stock to which the
holders of such rights, options, warrants or convertible securities are
entitled (other than pursuant to adjustment provisions therein which are
no more favorable in their entirety than those contained in this
paragraph (h)), the Exercise Price shall again be adjusted to be the
Exercise Price which would then be in effect in the case of clause (i),
if such rights, options, warrants or convertible securities had not been
issued, or in the case of clause (ii), if such holders had initially
been entitled to such changed number of shares of Common Stock. No
adjustment of the Exercise Price shall be made pursuant to this
paragraph (h)(4) to the extent that the Exercise Price shall have been
adjusted pursuant to paragraph (h)(3) upon the setting of any record
date relating to such rights, options, warrants or convertible
securities and such adjustment fully reflects the number of shares of
Common Stock to which the holders of such rights, options, warrants or
convertible securities are entitled and the price payable therefor.
(5) In case the Company shall fix a record date for the making
of a distribution to holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in
which the Company is the surviving corporation) of evidences of
indebtedness, cash, assets or other property (other than dividends
payable in Common Stock or rights, options or
9
warrants referred to in, and for which an adjustment is made pursuant
to, paragraph (h)(3) hereof), the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price
in effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price Per Common Share on
such record date, less the fair market value (determined as set forth in
paragraph (h)(2) hereof) of the portion of the assets, cash, other
property or evidence of indebtedness so to be distributed which is
applicable to one share of Common Stock, and the denominator of which
shall be such Current Market Price Per Common Share. Such adjustments
shall be made successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
(6) For the purpose of any computation under paragraph (e) or
paragraph (h)(2), (3), (4) or (5) hereof, on any determination date,
the Current Market Price Per Common Share shall be deemed to be the
average (weighted by daily trading volume) of the Daily Prices (as
defined below) per share of the Common Stock for the 20 consecutive
trading days ending three days prior to such date. "DAILY PRICE" means
(1) if the shares of Common Stock then are listed and traded on the
New York Stock Exchange, Inc. ("NYSE"), the closing price on such day
as reported on the NYSE Composite Transactions Tape; (2) if the shares
of Common Stock then are not listed and traded on the NYSE, the
closing price on such day as reported by the principal national
securities exchange on which the shares are listed and traded; (3) if
the shares of Common Stock then are not listed and traded on any such
securities exchange, the last reported sale price on such day on the
National Market of the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ"); (4) if the shares of
Common Stock then are not listed and traded on any such securities
exchange and not traded on the NASDAQ National Market, the average of
the highest reported bid and lowest reported asked price on such day
as reported by NASDAQ; or (5) if such shares are not listed and traded
on any such securities exchange, not traded on the NASDAQ National
Market and bid and asked prices are not reported by NASDAQ, then the
average of the closing bid and asked prices, as reported by The Wall
Street Journal for the over-the-counter market. If on any
determination date the shares of Common Stock are not quoted by any
such organization, the Current Market Price Per Common Share shall be
10
the fair market value of such shares on such determination date as
determined by the Board of Directors, without regard to considerations
of the lack of liquidity, applicable regulatory restrictions or any of
the transfer restrictions or other obligations imposed on such shares
set forth in the Investors' Agreement. If the Principal Holders shall
object to any determination by the Board of Directors of the Current
Market Price Per Common Share, the Current Market Price Per Common Share
shall be the fair market value per share of Common Stock as determined
by an independent appraiser retained by the Company at its expense and
reasonably acceptable to the Principal Holders. For purposes of any
computation under this paragraph (h), the number of shares of Common
Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Company or its subsidiaries.
(7) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least one
percent in such price; PROVIDED that any adjustments which by reason
of this paragraph (h)(7) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (h) shall be made to the nearest one
tenth of a cent or to the nearest hundredth of a share, as the case
may be.
(8) In the event that, at any time as a result of the provisions
of this paragraph (h), the holder of this Warrant upon subsequent
exercise shall become entitled to receive any shares of capital stock
or other securities of the Company other than Common Stock, the number
of such other shares so receivable upon exercise of this Warrant shall
thereafter be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions
contained herein.
(9) Upon each adjustment of the Exercise Price as a result of
the calculations made in paragraphs (h)(1), (2), (3), (4) or (5)
hereof, the number of shares for which this Warrant is exercisable
immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that
number of shares of Common Stock obtained by (i) multiplying the
number of shares covered by this Warrant immediately prior to this
adjustment of the number of shares by the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (ii)
11
dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment of the Exercise Price.
(10) The Company shall notify all Holders of the fixing of a
record date for the purpose of payment of a cash dividend to holders
of Common Stock as soon as reasonably practicable, but in no event
less than 20 days prior to any such record date.
(11) 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 paragraph (h), the Company shall forthwith file in the custody of
the secretary or any assistant secretary at its principal executive
office and with its stock transfer agent or its warrant agent, if any,
an officers' certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable detail the
facts requiring such adjustment and the manner of computing such
adjustment. Each such officers' certificate shall be signed by the
chairman, president or chief financial officer of the Company and by
the secretary or any assistant secretary of the Company. Each such
officers' certificate shall be made available at all reasonable times
for inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to paragraph (f) and the Company shall, forthwith
after each such adjustment, mail a copy, by first-class mail, of such
certificate to the Holder.
(12) The Holder shall, at its option, be entitled to receive, in
lieu of the adjustment pursuant to paragraph (h)(5) otherwise required
thereof, on the date of exercise of the Warrants, the evidences of
indebtedness, other securities, cash, property or other assets which
such Holder would have been entitled to receive if it had exercised
its Warrants for shares of Common Stock immediately prior to the
record date with respect to such distribution. The Holder may
exercise its option under this paragraph (h)(12) by delivering to the
Company a written notice of such exercise within seven days of its
receipt of the certificate of adjustment required pursuant to
paragraph (h)(11) to be delivered by the Company in connection with
such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation
12
of outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by
such consolidation or resulting from such merger or which acquires such
assets, as the case may be, the Holder shall have the right thereafter to
exercise this Warrant for the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock for which this Warrant may
have been exercised immediately prior to such consolidation, merger, sale or
transfer, assuming (i) such holder of Common Stock is not a Person with which
the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may
be ("CONSTITUENT PERSON"), or an Affiliate of a constituent Person and (ii)
in the case of a consolidation, merger, sale or transfer which includes an
election as to the consideration to be received by the holders, such holder
of Common Stock failed to exercise its rights of election, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (PROVIDED that if the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer is not the same for each share of Common Stock held
immediately prior to such consolidation, merger, sale or transfer by other
than a constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised ("NON-ELECTING SHARE"),
then for the purpose of this paragraph (i) the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares).
Adjustments for events subsequent to the effective date of such a
consolidation, merger and sale of assets shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Warrant. In any such
event, effective provisions shall be made in the certificate or articles of
incorporation of the resulting or surviving corporation, in any contract of
sale, conveyance, lease or transfer, or otherwise so that the provisions set
forth herein for the protection of the rights of the Holder shall thereafter
continue to be applicable; and any such resulting or surviving corporation
shall expressly assume the obligation to deliver, upon exercise, such shares
of stock, other securities, cash and property. The provisions of this
paragraph (i) shall similarly apply to successive consolidations, mergers,
sales, leases or transfers.
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the
Company as the case may be, at its address (or telecopier number) set forth
below, or such other address (or telecopier number) as shall have been
furnished to the party giving or making such notice, demand or delivery:
13
If to the Company: XxXxxxx Holdings Co.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: X. Xxxx XxXxxxx
If to the Holder: [________________________________]
[________________________________]
[________________________________]
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or
(ii) if given by any other means, when received at the address specified
herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder of the Company, including, without limitation, the right to vote,
to receive dividends or other distributions or to receive any notice of
meetings of shareholders or any notice of any proceedings of the Company
except as may be specifically provided for herein.
(l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED
AND ENFORCED IN ACCORDANCE WITH SUCH LAWS.
(m) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the Holder and the Company, or in
the case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
14
IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate
to be signed by its duly authorized officer and to be dated as of October 2,
1998.
XXXXXXX HOLDINGS CO.
By
-------------------------------
Name:
Title:
Acknowledged and Agreed:
[________________________________]
By
-------------------------------
Name:
Title:
