EX 4.5
EXECUTION COPY
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") dated as of December
__, 1997 is made by and among Bolle Inc., a Delaware corporation having its
executive offices at 555 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Avenue, Suite B-302, Rye, New York,
10580 USA (the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Passaquay, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, each having a
business address at ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the
"Warrantholders").
The Company hereby agrees to issue to the Warrantholders,
Stock Purchase Warrants, as hereinafter described (the "Warrants"), to purchase
an aggregate of shares, subject to adjustment as provided for herein (the
"Shares") of common stock, par value $.01 per share of the Company (the "Common
Stock"). The number of Shares that each Warrantholder's Warrant shall obtain
upon exercise in full of such Warrant is set forth in Schedule 1 to this
Agreement. The Warrants shall be issued on the date of this Agreement (the
"Closing Date").
In consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective rights and
obligations thereunder, the Company and the Warrantholders, for value received,
hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF WARRANTS.
1.1. Registration. The Warrants shall be numbered and shall
be registered on the books of the Company when issued.
1.2. Transfer. The Warrants shall be transferable only on the
books of the Company maintained at its principal office in Rye, New York, USA
or wherever its principal executive offices may then be located upon delivery
thereof duly endorsed by the Warrantholder or by its duly authorized attorney
or representative, or accompanied by proper evidence of succession, assignment
or authority to transfer. Upon any registration of transfer, the Company shall
execute and deliver a new Warrant to the person entitled thereto. Subject to
the limitations set forth in Section 1.3 below, the Warrants may be sold,
transferred or otherwise disposed of by the Warrantholders at any time during
the period commencing at 9:00 a.m. New York City Time on July ___, 1999 (the
"Exercisability Date") and ending at 5:00 p.m. New York City Time on July ___,
2001 (the "Termination Date"); provided, however, that the Warrants may be
pledged at any time after the Closing Date, subject to compliance with all
applicable laws.
1.3. Limitations on Transfer of the Warrants. The Warrants
may not be sold, transferred, or otherwise disposed of by the Warrantholders in
the absence of registration of the Warrant under the Securities Act of 1933, as
amended (the "Securities Act"), and state securities laws, or an exemption
therefrom. A Warrant shall be divided or combined, upon request to the Company,
by the Warrantholder, into a certificate or certificates representing the right
to purchase the same, aggregate number of Shares purchasable under the Warrant.
Unless the context indicates otherwise, the term "Warrantholder" shall include
any transferee or transferees of the
Warrants pursuant to this subsection 1.3, and the term "Warrant" shall include
any and all warrants outstanding pursuant to this Agreement, including those
evidenced by a certificate or certificates issued upon division, exchange,
substitution or transfer pursuant to this Agreement.
1.4. Form of Warrants.
(a) The text of the Warrants and the form of election to
purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The price per Share and the number of Shares issuable
upon exercise of the Warrant are subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The
Warrants shall be executed on behalf of the Company by its President
or a Vice President.
(b) A Warrant bearing the signature of an individual who was
at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such
office prior to the delivery of such Warrant or did not hold such
office on the date of this Agreement.
(c) The Warrant shall be dated as of the date of signature
thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
1.5. Legend on Warrants and Share Certificates. The Warrants
and each certificate for Shares initially issued upon exercise of the Warrants,
shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED,
MORTGAGED, PLEDGED OR OTHERWISE DISPOSED OF OR ENCUMBERED
WITHOUT COMPLIANCE WITH THE SECURITIES ACT AND STATE
SECURITIES LAWS."
Any Warrant or certificate issued at anytime in exchange or substitution for
any Warrant or certificate bearing such legend shall also bear the above legend
unless, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or such other counsel as
shall be reasonably approved by the Company, the securities represented thereby
need no longer be subject to such restrictions.
SECTION 2. EXCHANGE OF WARRANT CERTIFICATE.
Any Warrant certificate may be exchanged without expense to
the Warrantholder (other than for the payment of any taxes associated with such
exchange) for another Warrant certificate or certificates entitling the
Warrantholder to purchase a like aggregate number of Shares as the Warrant
certificate or certificates surrendered then entitling such Warrantholder to
purchase. Any Warrantholder desiring to exchange a Warrant certificate shall
make such request in writing delivered to the Company, and shall surrender,
properly endorsed, the certificate evidencing the Warrant to be so exchanged.
Thereupon, the Company shall execute and deliver
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to the person entitled thereto a new Warrant certificate as so requested.
SECTION 3. TERM OF WARRANTS; EXERCISE OF WARRANTS.
Subject to the terms of this Agreement, a Warrantholder shall
have the right, at any time during the period commencing on the Exercisability
Date and ending on the Termination Date, to purchase from the Company up to the
number of Shares which the Warrantholder may at the time be entitled to
purchase pursuant to this Agreement, upon surrender to the Company, at its
principal office in Rye, New York, USA, of the certificate evidencing the
Warrant to be exercised, together with the purchase form on the reverse thereof
duly filled in and signed, and upon payment to the Company of the Warrant Price
(as defined in and determined in accordance with the provisions of Sections 7
and 8 hereof), for the number of Shares with respect to which such Warrant is
then exercised. Except as otherwise provided in this Agreement, payment of the
aggregate Warrant Price shall be made in cash, by cashier's check or by wire
transfer. Notwithstanding any other provision of this Agreement to the
contrary, no Warrant shall be exercised, in whole or in part, for an amount of
Shares that is less than 17,000 or the remaining Shares that such Warrantholder
is then able to purchase upon exercise of the Warrant.
Upon such surrender of the Warrant and payment of such
Warrant Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch (and, in any event, no later than 10 business days
from the date of such surrender and payment) to or upon the written order of
the Warrantholder and in such name or names as the Warrantholder may designate
certificate or certificates for the number of full Shares so purchased upon the
exercise of the Warrant, together with cash, as provided in Section 9 hereof
with respect to any fractional Shares otherwise issuable upon such surrender
and the cash, property and other securities to which the Warrantholder is
entitled pursuant to the provisions of Section 8. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of such Shares as
of the close of business on the date of the surrender of the Warrant and
payment of the Warrant Price, as aforesaid, notwithstanding that the
certificates representing such Shares shall not actually have been delivered or
that the stock and warrant transfer books of the Company shall then be closed.
A Warrant shall be exercisable, at the election of the Warrantholder, either in
full or from time to time in part and, in the event that the certificate
evidencing the Warrant is exercised with respect to less than all of the Shares
specified therein at any time prior to the Termination Date, a new certificate
evidencing the remaining Warrant shall be issued by the Company.
Notwithstanding anything herein to the contrary, the
Warrantholders may, at their option, at any time during the period commencing
on the Exercisability Date and ending on the Termination Date, exchange the
Warrants, in whole or in part (a "Warrant Exchange"), into the number of Shares
determined in accordance with this paragraph, by surrendering the certificate
evidencing the Warrant to be exchanged at the principal executive office of the
Company or at the office of its stock transfer agent, accompanied by a notice
stating such Warrantholder's intent to effect such exchange, the number of
Shares to be exchanged and the date on which the Warrantholder requests that
such Warrant Exchange occur (the "Notice of Exchange"). The Warrant Exchange
shall take place on the date specified in the Notice of Exchange or, if later,
the date the Notice of Exchange is received by the Company (the "Exchange
Date"). Certificates for
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the Shares issuable upon such Warrant Exchange and, if applicable, a new
Warrant certificate of like tenor evidencing the balance of the Shares
remaining subject to this Agreement, shall be issued as of the Exchange Date
and delivered to the Warrantholder within 10 business days following the
Exchange Date. In connection with any Warrant Exchange, this Agreement shall
represent the right to subscribe for and acquire the number of Shares (rounded
to the next highest integer) equal to (i) the number of Shares specified by the
Warrantholder in its Notice of Exchange (the "Total Number") less (ii) the
number of Shares equal to the quotient obtained by dividing (A) the product of
the Total Number and the existing Warrant Price by (B) the Current Market Price
(as defined in Section 8.1) of a share of Common Stock as at the Exchange Date.
SECTION 4. PAYMENT OF TAXES.
The Company shall pay all U.S. documentary stamp taxes, if
any, attributable to the initial issuance of the Shares; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable with respect to any secondary transfer of the Warrant or the Shares.
SECTION 5. MUTILATED OR MISSING WARRANT.
In case the certificate or certificates evidencing a Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall, at the
request of the Warrantholder, issue and deliver in exchange and substitution
for and upon cancellation of the mutilated certificate or certificates, or in
lieu of and substitution for the certificate or certificates lost, stolen or
destroyed, a new Warrant certificate or certificates of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such mutilation, loss, theft or destruction of
such Warrant and of a bond of indemnity, if requested, also satisfactory in
form and amount at the applicant's cost. Applicants for such substitute Warrant
certificate shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
SECTION 6. RESERVATION OF SHARES OF CAPITAL STOCK.
There has been reserved, and the Company shall at all times
keep reserved so long as the Warrants remains outstanding, out of its
authorized Common Stock, such number of shares of Common Stock as shall be
subject to purchase under the Warrants. Every transfer agent for the Common
Stock and other securities of the Company issuable upon the exercise of the
Warrants shall be irrevocably authorized and directed at all times to reserve
such number of authorized shares and other securities as shall be requisite for
such purpose. The Company shall keep a copy of this Agreement on file with
every transfer agent for the Common Stock and other securities of the Company
issuable upon the exercise of the Warrants. The Company shall supply such
transfer agent with duly executed stock and other certificates for such purpose
and shall provide or otherwise make available any cash which may be payable as
provided in Sections 8 and 9 hereof.
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SECTION 7. WARRANT PRICE.
The price per Share (the "Warrant Price") at which Shares
shall be purchasable upon the exercise of the Warrants shall be $ per Share,
subject to adjustment pursuant to Section 8 hereof.
SECTION 8. ADJUSTMENTS.
8.1. Definition of Current Market Price. For purposes of this
Section 8, the term "Current Market Price" shall mean, on any date specified
herein, (i) if the Common Stock is listed on any national securities exchange
or the Nasdaq National Market, the average of the last reported sales price (or
the average of the quoted closing bid and asked prices if there shall have been
no sales) of the Common Stock on such exchange or the Nasdaq National Market
(as the case may be) for a period of 20 trading days prior to such date, or
(ii) if the Common Stock is not so listed, on the basis of the average of the
mean of the last quoted bid and asked prices for the Common Stock for each day
in the 20 trading day period prior to such date, as reported by Nasdaq, or its
successor, or (iii) if the Common Stock is not so listed and if there are no
such closing bid and asked prices, on the basis of the fair market value per
share as reasonably determined in good faith by the Board of Directors of the
Company, but not less than the book value thereof as of the most recent fiscal
year of the Company.
8.2. Adjustment of Warrant Price and Number of Shares. The
number and kind of securities purchasable upon the exercise of the Warrants and
the Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Adjustments.
(i) In case the Company shall (A) pay a dividend in
shares of Common Stock or make a distribution in shares of
Common Stock, (B) subdivide its outstanding Common Stock, (C)
combine its outstanding Common Stock into a smaller number of
shares of Common Stock or (D) issue by reclassification of
its Common Stock other securities of the Company, the number
of Shares purchasable upon exercise of the Warrant
immediately prior thereto shall be adjusted so that each
Warrantholder shall be entitled to receive, upon exercise of
its Warrant, the kind and number of Shares or other
securities of the Company which it would have owned or would
have been entitled to receive after the happening of any of
the events described above had its Warrant been exercised
immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made
pursuant to this paragraph (i) shall become effective
immediately after the effective date of such event and such
adjustment shall be retroactive to the record date, if any,
for such event.
(ii) Except in respect of transactions described in
paragraph (i) above, in case the Company shall sell or issue
Common Stock or rights, options, warrants or convertible
securities (or rights, options or warrants to
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purchase convertible securities) containing the right to
subscribe for or purchase shares of Common Stock
(collectively, "Rights"), and the sale or issuance price per
share of Common Stock (or in the case of any Rights, the sum
of the consideration paid or payable for any such Right
entitling the holder thereof to acquire one share of Common
Stock and such additional consideration paid or payable upon
exercise or conversion of any such Right to acquire one share
of Common Stock) is less than the Current Market Price as
determined as of the date of such sale or issuance, then the
number of Shares purchasable upon exercise of each Warrant
shall be increased by dividing such number of Shares by a
fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares
which the aggregate of the offering price of the total number
of shares so offered for subscription or purchase or subject
to such Rights or (or the aggregate conversion price of the
convertible securities so offered for subscription or
purchase) would purchase at such Current Market Price and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares so offered for
subscription or purchase or subject to such Rights or (or
into which the convertible securities so offered for
subscription or purchase are convertible), such increase to
become effective immediately after the opening of business on
the day following the date fixed for such determination. For
the purposes of such adjustments, the Common Stock which the
holders of any such Rights shall be entitled to subscribe for
or purchase shall be deemed to be outstanding as of the date
of determination of stockholders entitled to receive such
Rights or the date of issuance of such Rights. If at the end
of the period during which such Rights are exercisable not
all such Rights shall have been exercised, the adjusted
number of Shares shall be immediately readjusted to what it
would have been based on the number of additional shares of
Common Stock actually issued. In addition, for purposes of
this subsection (ii), the number of shares of Common Stock
outstanding shall not include shares of Common Stock held in
the treasury of the Company.
(iii) Except in respect of transactions described in
paragraph (i) above, in case the Company shall declare,
order, pay or make a dividend or other distribution
(including, without limitation, any distribution of cash,
other or additional stock or other securities or property or
options), by way of dividend or spin-off, reclassification,
recapitalization or similar corporate rearrangement or
otherwise, but excluding dividends described in Section
8.2(b) hereof on the Common Stock, then in each case the
number of Shares thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying (A) the
number of Shares theretofore purchasable upon exercise of the
Warrant by (B) a fraction, of which the
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numerator shall be the then Current Market Price on the
record date for the determination of stockholders entitled to
receive such dividend or other distribution, and of which the
denominator shall be such Current Market Price on such date
minus the amount of such dividend or distribution applicable
to one share of Common Stock. The Board of Directors of the
Company shall determine the amount of such dividend or
distribution allocable to one share of Common Stock and such
determination, if reasonable and based upon the Board of
Directors' good faith business judgment, shall be binding
upon the Warrantholders. Such adjustment shall be made
whenever any such distribution is made and shall become
effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to
receive such distribution.
(iv) No adjustment in the number of Shares
purchasable hereunder shall be required unless (A) such
adjustment would require an increase or decrease of at least
point seven-five percent (0.75%) in the number of Shares then
purchasable upon the exercise of the Warrants, or (B) a
notice of a Warrantholder's election to purchase has been
received by the Company with respect to the exercise of the
balance of the Shares purchasable pursuant to such Warrant
(prior to such required adjustment); provided, however, that
any adjustments which by reason of this paragraph (iv) are
not required to be made immediately shall be carried forward
and taken into account in any subsequent adjustment. In
calculating any adjustment hereunder, the Warrant Price shall
be calculated to the nearest .001 of a cent and the number of
Shares purchasable hereunder shall be calculated to the
nearest .001 of a share.
(v) Whenever the number of Shares purchasable upon
the exercise of the Warrant is adjusted as herein provided,
the Warrant Price payable upon exercise of the Warrant shall
also be adjusted by multiplying such Warrant Price
immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Shares purchasable upon
the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number
of Shares so purchasable immediately after such adjustment.
(vi) For the purpose of this section 8.2(a), the
term "Common Stock" shall mean (A) the class of stock
designated as the Common Stock of the Company at the date of
this Agreement or (B) any other class of stock resulting from
successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from no par
value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 8 the
Warrantholders shall become entitled to purchase any
securities of the Company other than Common Stock, the
Company shall duly reserve such securities for issuance and
thereafter the number of such other securities so purchasable
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upon exercise of a Warrant and the Warrant Price of such
securities shall be subject to the adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares
contained in this Section 8.
If the consideration provided for in any Right or the additional
consideration, if any, payable upon the conversion or exchange of any
Right shall be reduced, or the rate at which any Right is exercisable
or convertible into or exchangeable for shares of Common Stock shall
be increased, at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then, effective
concurrently with each such change, the Warrant Price then in effect
shall first be adjusted to eliminate the effects (if any) of the
issuance (or deemed issuance) of such Right on the Warrant Price and
then readjusted as if such Right had been issued on the date of such
change with the terms in effect after such change, but only if as a
result of such adjustment the Warrant Price then in effect hereunder
is thereby reduced.
(b) No Adjustment for Dividends. Except as provided in
Section 8.2(a), no adjustment with respect to any ordinary dividends
(made out of current earnings) on shares of Common Stock shall be made
during the term of the Warrants or upon the exercise of a Warrant.
(c) Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. In case of any consolidation or merger of the
Company with or into another entity as a result of which the holders
of Common Stock become holders of other shares or securities of the
Company or of another entity or person, or such holders receive cash
or other assets, or in case of any sale or conveyance to another
person of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such
successor or purchasing entity or person, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders
shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of
their respective Warrants the kind and amount of Shares and other
securities and property which it would have owned or have been
entitled to receive after the happening of such consolidation, merger,
sale or conveyance had its Warrant been exercised immediately prior to
such action and (ii) that the Warrants shall continue in full force
and effect notwithstanding the consummation of such transaction and
that such person or entity shall assume the obligations of the Company
hereunder. The agreements referred to in this Section 8.2(c) shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in the other provisions in
this Section 8. The provisions of this Section 8.2(c) shall similarly
apply to successive consolidations, mergers, sales or conveyances.
8.3. Statement on Warrants. Irrespective of any adjustment in
the Warrant Price or the number or kind of Shares purchasable upon the exercise
of a Warrant, a Warrant certificate or certificates therefore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in a Warrant initially issuable pursuant to this Agreement.
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8.4. Notice of Adjustment. Whenever the Warrant Price shall
be adjusted pursuant to this Section 8, the Company shall forthwith file at
each office designated for the exercise of the Warrants, a statement, signed by
the Chairman of the Board, the President, any Vice President or Treasurer of
the Company, showing in reasonable detail the facts requiring such adjustment
and the Warrant Price that will be effective after such adjustment. Each such
statement shall be made available at all reasonable times for inspection by any
Warrantholder. The Company shall also cause a notice setting forth any such
adjustments to be sent by mail, first class, postage prepaid, to each
Warrantholder.
8.5. Notice of Certain Events. If at any time after the
Closing Date:
(a) the Company shall pay any dividend upon its Common Stock
or make any distribution to the holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any
class or other Rights;
(c) the Company shall offer any other Rights to the holders
of its Common Stock;
(d) there shall be any capital reorganization, or
reclassification of the capital stock of the Company or any of its
subsidiaries, or consolidation or merger of the Company with or into
any other corporation or entity, or consolidation or merger of any
other corporation or entity with or into the Company, or the sale,
lease, conveyance, exchange or transfer of all or substantially all of
the property or assets of the Company to any other corporation or
entity; or
(e) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give notice to the
Warrantholders of the date on which the books of the Company shall close or a
record shall be taken for such dividend, distribution, subscription or other
rights, or (y) the date (or, if not then known, a reasonable approximation
thereof by the Company) on which such reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, exchange, transfer,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also specify (or, if not then known, reasonably approximate)
the date as of which the holders of Common Stock of record shall be paid or
shall receive such dividend, distribution, subscription or other rights, or
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, exchange, transfer, dissolution, liquidation
or winding up, as the case may be. Such notice shall be given at the time
notice thereof (if any) is given to the holders of Common Stock and, in any
event, not later than 20 days prior to the date specified in clause (x) or (y)
of this subparagraph, as the case may be. Such notice shall also state that the
action in question or the record date is subject to the effectiveness of a
registration statement under the Securities Act of 1933, as amended, or to a
favorable vote of stockholders, if either is required.
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8.6. Reservation. The Company shall at all times reserve and
keep available out of its authorized but unissued Common Stock the full number
of shares of Common Stock deliverable upon the exercise of the Warrants and
shall take all such action and obtain all such permits or orders as may be
necessary to enable the Company lawfully to issue such Common Stock upon the
exercise of the Warrants.
SECTION 9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Shares
on the exercise of the Warrants. If any fraction of a Share would, except for
the provisions of this Section 9, be issuable on the exercise of the Warrants
(or specified portions thereof), the Company shall pay an amount in cash equal
to the Current Market Price as determined pursuant to Section 8.1 above of such
fractional Share.
SECTION 10. NO RIGHTS AS STOCKHOLDERS.
Nothing contained in this Agreement or in the Warrants shall
be construed as conferring upon the Warrantholders or their transferees any
rights as a stockholder of the Company.
SECTION 11. NOTICES.
All notices and other communications under this Agreement
shall be in writing and shall be delivered by hand or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(a) if to the Warrantholders, to each Warrantholder at the
address specified on Schedule 1 to this Agreement with respect to that
Warrantholder or at such other address as a Warrantholder may have furnished
the Company in writing, or
(b) if to the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇-▇▇▇, ▇▇▇, ▇▇ ▇▇▇▇▇, marked for the attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman,
or at such other address as it may have furnished in writing to the
Warrantholders.
Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
SECTION 12. SUCCESSORS.
All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Warrantholders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
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SECTION 13. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall not merge or consolidate with or into any
other corporation or sell all or substantially all of its property to another
corporation, unless the provisions of subsection 8.2(c) are complied with.
SECTION 14. REPRESENTATIONS.
14.1. Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power to carry on its business as it is
now being conducted or currently proposed to be conducted. The Company is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary,
except where the failure to be so qualified will not have a material adverse
effect on the business, properties, assets, condition (financial or otherwise),
liabilities or operations of the Company and its subsidiaries taken as a whole.
14.2. Capitalization of the Company; Title to the Shares.
(a) The authorized capital stock of the Company consists of
shares of Common Stock, par value $.01 per share and shares of
preferred stock, $.01 par value per share. As of , 1997, (i)
shares of Company Common Stock, (ii) 64,120 shares of Series A
preferred stock and (iii) shares of Series B preferred stock were
issued and outstanding. As of the date hereof, there are no bonds,
debentures, notes or other indebtedness having the right to vote on
any matters on which the Company's stockholders may vote issued or
outstanding. As of the date hereof, except for the Warrants
contemplated by this Agreement, there are no options, warrants, calls
or other rights, agreements or commitments presently outstanding
obligating the Company to issue, deliver or sell shares of its
capital stock or debt securities, or obligating the Company to grant,
extend or enter into any such option, warrant, call or other such
right, agreement or commitment.
(b) The Shares will be duly authorized and validly issued,
and will be fully paid and nonassessable and no personal liability
will attach to the ownership thereof. Upon exercise of a Warrant, the
Company will deliver valid and marketable title to the Shares issuable
as a result of such exercise, free and clear of any liens, claims,
charges, security interests, legal or equitable encumbrances,
limitations or restrictions. Except for this Agreement, there are no
contracts, agreements, understandings, arrangements or restrictions
related to the ownership or voting of the Warrants or the Shares.
SECTION 15. REGISTRATION RIGHTS
15.1. Registration on Demand.
(a) During the two-year period commencing on the date that a
Warrant is first exercised by any Warrantholder, upon prior written
notice (a "Demand Notice") to the
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Company from holders representing at least a majority of the then
outstanding Registrable Securities (as defined in subparagraph (c)
below), determined as if the Warrants had been fully exercised, to the
effect that the holders of Registrable Securities desire to register
any of their Registrable Securities under the Securities Act, the
Company shall within 10 business days after receiving any Demand
Notice give notice (the "Company's Notice") to the other holders of
Registrable Securities stating the identity of the holders requesting
registration and the number of Registrable Securities proposed to be
sold thereby, and take appropriate action as promptly as practicable
after its receipt of the Demand Notice to file with the Securities and
Exchange Commission (the "Commission") a registration statement on the
appropriate form covering all Registrable Securities specified in the
Demand Notice and by such other holders (by notice given to the
Company within 15 days after their receipt of the Company's Notice),
(ii) use commercially reasonable efforts to cause such registration
statement to become effective under the Securities Act and (iii) use
commercially reasonable efforts to qualify the Registrable Securities
subject to the Demand Notice for sale in such states as reasonably
requested by the holders of a majority of Registrable Securities to be
included in such registration, if necessary; provided such effort
shall not require the Company to qualify as a foreign corporation or
subject itself to taxation in any jurisdiction where it is not already
so qualified or subject. The Company shall be obligated to effect only
one registration pursuant to this Section 15.1.
(b) The holders of the Registrable Securities to be included
in any registration pursuant to this Section 15.1 shall be obligated
to pay all registration expenses (as that term is defined in Section
15.5 hereof) of such registration whether or not such registration is
ever deemed effective. The Company agrees to use its best efforts to
effect any registration pursuant to this Section 15.1 in a cost
effective manner, consistent with prudent business practices for such
registrations.
(c) For purposes of this Agreement, "Registrable Securities"
shall mean, collectively (i) the Shares and (ii) any securities issued
or issuable with respect to the Shares by way of stock dividend, stock
split, in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
Registrable Securities will cease to be such when (i) a registration
statement covering such Registrable Securities has been declared
effective, (ii) they shall have been otherwise transferred, and the
Company shall have delivered new certificates or other evidences of
ownership for them not subject to any stop transfer order or other
restriction on transfer and not bearing a legend restricting transfer
in the absence of an effective registration or an exemption from the
registration requirements of the Securities Act and subsequent
disposition of them shall not require registration or qualification of
them under the Securities Act or any similar state law then in force,
or (iii) they shall have ceased to be outstanding.
(d) Any registration initiated by the holders of Registrable
Securities as a demand registration pursuant to this Section 15.1
shall count as a demand registration for purposes of this Section 15.1
when such registration shall have been filed with the Commission and
becomes effective and in the event such registration statement is
withdrawn at the request of the initialing holder(s) of Registrable
Securities prior to its becoming effective, unless such holder pays
all expenses (as defined in Section 15.5).
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(e) Notwithstanding the provisions of Section 15.1(a) of this
Agreement, the Company shall not be required to register Registrable
Securities which, together with any other securities to be included in
such registration, are equivalent to less than 17,000 shares of Common
Stock, subject to equitable adjustment in case the Company shall (A)
pay a dividend in shares of Common Stock or make a distribution in
shares of Common Stock, (B) subdivide its outstanding Common Stock,
(C) combine its outstanding Common Stock into a smaller number of
shares of Common Stock or (D) issue by reclassification of its Common
Stock other securities of the Company.
(f) The Company shall use its best efforts to maintain the
effectiveness of a registration statement filed pursuant to this
Section 15.1 for a period of 180 days from its effective date.
(g) The managing underwriter, if any, of any offering of
Registrable Securities contemplated by this Section 15.1 shall be
chosen by the holders of a majority of Registrable Securities included
therein, which managing underwriter shall be reasonably acceptable to
the Company.
15.2. Incidental Registration.
(a) If at any time or times after the Exercisability Date,
the Company intends to file a registration statement on Form ▇-▇, ▇-▇
or S-3 (or other appropriate form) for the registration of an offering
of equity securities with the Commission, the Company shall notify
each of the holders of record of Registrable Securities at least 30
days prior to each such filing of the Company's intention to file such
a registration statement, such notice shall state the number of shares
of equity securities proposed to be registered thereby. If any holder
of Registrable Securities notifies the Company within 30 days after
receipt of such notice from the Company of its desire to have included
in such registration statement any of its Registrable Securities, then
the Company shall cause the Company to include such shares in such
registration statement. The Company shall pay all the "expenses" (as
defined in Section 15.5 hereof) of such registration, excluding
underwriting discounts and commissions.
(b) The Company may in its discretion withdraw any
registration statement filed pursuant to this Section 15.2 subsequent
to its filing without liability to the holders of Registrable
Securities.
15.3. Allocations. In the event that any managing underwriter
for any offering described in Section 15.2 above notifies the Company that, in
good faith, it is able to proceed with the proposed offering only with respect
to a smaller number (the "Maximum Number") of securities than the total number
of Registrable Securities proposed to be offered by holders thereof, plus the
total number of securities proposed to be offered by the Company and all others
entitled to registration rights under such registration statement, then the
aggregate number of Registrable Securities that may be included in the proposed
offering by the holders thereof and the total number of securities that may be
included in the proposed offering by all other holders (other than the Company)
including shares in such registration statement shall equal the Maximum
-13-
Number less the number of shares proposed to be offered by the Company, such
difference to be allocated first in favor of the holders of Registrable
Securities and thereafter pro rata in accordance with the number of shares
proposed to be offered by each such party.
15.4. Indemnity. In connection with a registration statement
filed with the Commission pursuant to this Section 15, the Company shall
provide each holder of Registrable Securities included in such registration
statement, and each officer and director of any thereof, and each person who
controls such holder within the meaning of Section 15 of the Securities Act,
and Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"),
with indemnification against any losses, claims, damages or liabilities,
reasonable attorneys fees, costs or expenses and costs and expenses of
investigating and defending any such claims, (collectively "Damages"), joint or
several, to which any of them may become subject under the federal securities
laws, or otherwise, in form and substance as is customarily given to
underwriters in an underwritten offering of securities. Each holder including
Registrable Securities in any such registration statement agrees that it shall
indemnify the Company, and each officer and director thereof, and each person
who controls the Company within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, against any Damages, in form and substance
as is customarily given by underwriters to a corporation in an underwritten
public offering of securities; provided, however, that (i) any such holder
shall be liable under this Section 15.4 only to the extent that any such
Damages arises out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
in reliance upon and in conformity with written information furnished by such
holder, specifically for use in the preparation thereof; and (ii) the maximum
amount which may be recovered from such holder shall be limited to the amount
of the proceeds received by such holder from the sale of his/her Registrable
Securities pursuant to such registration statement.
15.5. Expenses. The Company shall bear all expenses,
excluding fees and expenses of counsel for any selling stockholders and
excluding underwriting discounts and commissions, in connection with a
registration of Common Stock pursuant to Section 15.2. As used in this Section
15, "expenses" of a registration shall mean all expenses required to be
disclosed in Part II of the Form S-1 registration statement, or in a comparable
section of any similar form permitting an underwritten public offering, as well
as expenses of underwriters customarily reimbursed by issuers or selling
stockholders, excluding transfer taxes.
15.6. Rule 144. The Company agrees that it will file in a
timely manner all reports required to be filed by it pursuant to the Securities
Act and the Exchange Act and will take further action as and when any holder of
Registrable Securities may reasonably request in order that such holder may
effect sales of Registrable Securities pursuant to Rule 144 under the
Securities Act.
SECTION 16. APPLICABLE LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
-14-
SECTION 17. BENEFITS OF THIS AGREEMENT.
Except as otherwise provided herein, nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company and the Warrantholders any legal or equitable right, remedy or
claim under this Agreement, and this Agreement shall be for the sole and
exclusive benefit of the Company and the Warrantholders.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed, all as of the day and year first above written.
BOLLE INC.
------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Franck Bolle
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Passaquay
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 1
Name and Address
of Warrantholder No. of Shares
---------------- -------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, France...........................................
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, France...........................................
▇▇. ▇▇▇▇▇▇ Bolle
4 boulevard ▇▇▇▇▇
01100 Oyonnax, France...........................................
▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Arbant, France............................................
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Neuilly-sur-Seine, France.................................
▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2 rue Macrete
01100 Arbent, France............................................
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EXHIBIT A
WARRANT No._____
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. SUCH SECURITIES MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED, EXCHANGED, MORTGAGED, PLEDGED OR
OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE
SECURITIES ACT AND STATE SECURITIES LAWS."
WARRANT TO PURCHASE UP TO ____________ SHARES
OF COMMON STOCK OF
BOLLE INC. PAR VALUE $.01 PER SHARE
Exercisable commencing July ___, 1999;
Void after July ___, 2001.
THIS CERTIFIES that, for value received, ("Holder"), or registered
assigns, is entitled, subject to the terms and conditions set forth in this
Warrant, to purchase from Bolle Inc., a Delaware corporation (the "Company"),
up to ____________ shares of Common Stock, $.01 par value, of the Company, at
any time commencing 9:00 a.m. New York City time on July ___, 1999 and
continuing up to 5 p.m. New York City time on July ___, 2001 at a price per
Share of $ , per share, such number of Shares and price per Share being
subject to adjustment from time to time as set forth in the Warrant Agreement
referred to below. This Warrant is issued pursuant to a Warrant Agreement by
and among the Company, the Holder and certain other holders of Warrants, dated
as of December ___, 1997 (the "Warrant Agreement"), and is subject to all the
terms thereof, including the limitations on transferability set forth therein.
This Warrant may be exercised by the holder hereof, in whole or in part (but
not, in certain circumstances, as to a fractional share), by the presentation
and surrender of this Warrant with the form of Election to Purchase duly
executed, at the principal office of the Company (or at such other address as
the Company may designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
to the Company of the purchase price in cash, by cashier's check or by wire
transfer or by any other means permitted under the terms of the Warrant
Agreement. Notwithstanding the foregoing, this Warrant may not be exercised for
an amount of Shares that is less than 17,000 or the remaining Shares that such
Warrantholder is then able to purchase upon exercise of the Warrant. The Shares
so purchased shall be deemed to be issued to the holder hereof as the record
owner of such Shares as of the close of business on the date on which this
Warrant shall have been surrendered
A-1
and payment made for such Shares. Certificates for the Shares so purchased
shall be delivered or mailed to the holder promptly after this Warrant shall
have been so exercised, and, unless this Warrant has expired or has been
exercised in full, a new Warrant identical in form but representing the number
of Shares with respect to which this Warrant shall not have been exercised
shall also be issued to the holder hereof.
Nothing contained herein shall be construed to confer upon the holder of this
Warrant, as such, any of the rights of a stockholder of the Company.
Dated: ______________
BOLLE INC.
By:
-------------------------------
[Title]
A-2
BOLLE INC.
ELECTION TO PURCHASE
Bolle Inc.:
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder, Shares
provided for therein, and requests that certificates for the Shares be issued
in the name of:
-------------------------------------------------------------------------------
(Please Print Name, Address and Social Security Number)
and, if said number of Shares shall not be the total number of Shares
purchasable hereunder, that a new Warrant certificate for the balance of the
Shares purchasable under the within Warrant certificate be registered in the
name of the undersigned Warrantholder or his/her Assignee as below indicated
and delivered to the address stated below:
Dated: ____________, 19__
Name of Warrantholder or
Assignee (Please Print):
-------------------------------------
Address:
-----------------------------------------------------
Signature:
----------------------------------
Signature Guaranteed: Note: The above signature must correspond
with the name as written upon the face of
this Warrant certificate in every
particular, without alteration or
enlargement or any change whatever, unless
this Warrant has been assigned.
A-3
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
-------------------------------------------------------------------------------
(Name and Address of Assignee must be Printed or Typewritten)
the within Warrant, hereby irrevocably constituting and appointing
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Dated:______________________, 19__
-------------------------------------------
Signature of Registered Holder
Signature Guaranteed: Note: The signature of this assignment must
correspond with the name as it appears upon
the face of the within Warrant certificate
in every particular, without alteration or
enlargement or any change whatever.
