Exhibit 10-10
SECOND AMENDMENT TO WARRANTS
----------------------------
This Second Amendment to Warrants (this "Amendment") is made as of the 31st
day of January, 1995, between Nutraceutical International Corporation (f/k/a
Nutraceutical Corporation), a Delaware corporation (the "Company"), and Xxxxxx
Financial, Inc., a Delaware corporation ("Xxxxxx").
W I T N E S S E T H :
WHEREAS, the Company has previously issued to Xxxxxx that certain Warrant
To Purchase Non-Voting Common Stock of the Company dated as of October 28, 1993,
as amended by First Amendment thereto dated October 31, 1994 (the "Common Stock
Warrant") and that certain Warrant To Purchase Class A Non-Voting Common Stock
of the Company dated as of October 28, 1993, as amended by First Amendment
thereto dated October 31, 1994 (the "Class A Warrant") (collectively, the Common
Stock Warrant and the Class A Warrant are referred to as the "Warrants"); and
WHEREAS, the Company and Xxxxxx desire to amend the Warrants in certain
respects, as set forth more fully herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Terms capitalized herein and not otherwise defined herein
are used with the meanings ascribed to such terms in the Class A Warrant.
2. Class A Warrant Amended. The Class A Warrant is hereby amended as
follows:
(a) The second paragraph of the legend is amended and restated in its
entirety as follows:
THIS WARRANT IS SUBJECT TO CERTAIN TRANSFER RESTRICTIONS PURSUANT TO AN
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 31, 1995,
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS
AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST.
(b) The definition of "Excluded Management Shares" included in Article
I is hereby amended and restated in its entirety as follows:
"Excluded Management Shares" means, collectively, (i) shares of Class P
Stock and shares of Other Common Stock purchased by, or (ii) shares of
Class P Stock and shares of Other Common Stock issued or issuable upon
exercise or conversion of any Stock Purchase Rights or Convertible
Securities issued to, officers, employees, directors or consultants of the
Company or any Subsidiary of the Company, other than Affiliates and/or
employees of the Xxxx Investors (except for Xxxxx X. Xxx XX or Xxxxx X.
Xxxxx), at any time on or after October 28, 1993, (x) up to and not
exceeding (A) an aggregate of 2,000 shares of Class P Stock and (B) 33,900
shares of Other Common Stock, in the case of such shares issued or issuable
for a consideration less than the Fair Value per share at the time of
issuance or grant, and (y) an unlimited number of shares of Other Common
Stock, in the case of such shares purchased, issued or issuable for a
consideration greater than or equal to the Fair Value per share at the time
of purchase, issuance or grant (including, without limitation, 40,000
shares of Other Common Stock issuable upon exercise of the Stock Purchase
Rights granted to certain officers and directors of the Company as of
November 15, 1994 (including Xxxxx X. Xxx XX and Xxxxx X. Xxxxx) and 21,779
shares of Other Common Stock issuable upon exercise of the Stock Purchase
Rights granted to W.E. Xxxxx & Company and/or its Affiliates on January 31,
1995).
(c) The following additional definition is hereby added to Article I:
"Excluded Investor Shares" means, collectively, (i) shares of Other Common
Stock or Other Non-Voting Common Stock purchased, or (ii) shares of Other
Common Stock or Other Non-Voting Common Stock issued or issuable upon
exercise or conversion of any Stock Purchase Rights or Convertible
Securities issued to Xxxxxxx National Life Insurance Company, a Michigan
insurance corporation, at
any time on or after October 28, 1993, up to and not exceeding an aggregate
of 84,309 shares of Other Non-Voting Common Stock or Other Common Stock.
(d) The defined term "Stockholders Agreement" included in Article I is
hereby amended and restated in its entirety:
"Stockholders Agreement" means that certain Amended and Restated
Stockholders Agreement dated as of January 31, 1995 among the Company,
Initial Holder, the Xxxx Capital Investors and certain of the Company's
other stockholders, as amended.
(e) Section 4.2 is hereby amended by amending and restating the
initial sentence thereof (preceding subsection (a) thereof) as follows:
"The number of shares of Class A Non-Voting Stock shall be subject to
adjustment from time to time as hereinafter set forth, except with respect
to the issuance of Excluded Management Shares and Excluded Investor
Shares."
(f) Subsection 4.2(o)(iv) is hereby amended and restated in its
entirety as follows:
"(iv) the issuance of Excluded Management Shares or Excluded Investor
Shares."
(g) Sections 4.2(b), (c) and (d) are each hereby amended by deleting
each reference to "ARTICLE VI" therein and replacing each such reference
with "the Stockholders Agreement".
(h) Section 4.2 is amended by adding Section 4.2(p) thereto:
"(p) No Adjustments to Original Cost. Anything herein to the contrary
notwithstanding, neither an adjustment in the Exercise Price nor an
adjustment in the number of shares of Class A Non-Voting Stock issuable
upon the exercise of this Warrant shall entitle the holder of any Warrant
Share to any increase in the aggregate amount of the Original Cost (as such
term is defined in the Company's certificate of incorporation as in effect
on
January 31, 1995) as in effect prior to any such adjustment."
(i) Sections 4.3, 8.3, 8.5, 8.9 and 9.13, as well as ARTICLE VI, are
hereby deleted in their entirety.
3. Common Stock Warrant Amended. The Common Stock Warrant is hereby
amended as follows:
(a) The second paragraph of the legend is amended and restated in its
entirety as follows:
THIS WARRANT IS SUBJECT TO CERTAIN TRANSFER RESTRICTIONS PURSUANT TO AN
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 31, 1995,
AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
(b) The definition of "Excluded Management Shares" included in Article
I is hereby amended and restated in its entirety as follows:
"Excluded Management Shares" means, collectively, (i) shares of Class P
Stock and shares of Other Common Stock purchased by, or (ii) shares of
Class P Stock and shares of Other Common Stock issued or issuable upon
exercise or conversion of any Stock Purchase Rights or Convertible
Securities issued to, officers, employees, directors or consultants of the
Company or any Subsidiary of the Company, other than Affiliates and/or
employees of the Xxxx Investors (except for Xxxxx X. Xxx XX or Xxxxx X.
Xxxxx), at any time on or after October 28, 1993, (x) up to and not
exceeding (A) an aggregate of 2,000 shares of Class P Stock and (B) 33,900
shares of Other Common Stock, in the case of such shares issued or issuable
for a consideration less than the Fair Value per share at the time of
issuance or grant, and (y) an unlimited number of shares of Other Common
Stock, in the case of such shares purchased, issued or issuable for a
consideration greater than or equal to the Fair Value per share at the time
of purchase, issuance or grant (including, without limitation, 40,000
shares of Other Common Stock issuable upon exercise of the Stock Purchase
Rights granted to
certain officers and directors of the Company as of November 15, 1994
(including Xxxxx X. Xxx XX and Xxxxx X. Xxxxx) and 21,779 shares of Other
Common Stock issuable upon exercise of the Stock Purchase Rights granted to
W.E. Xxxxx & Company and/or its Affiliates on January 31, 1995).
(c) The following additional definition is hereby added to Article I:
"Excluded Investor Shares" means, collectively, (i) shares of Other Common
Stock or Other Non-Voting Common Stock purchased, or (ii) shares of Other
Common Stock or Other Non-Voting Common Stock issued or issuable upon
exercise or conversion of any Stock Purchase Rights or Convertible
Securities issued to Xxxxxxx National Life Insurance Company, a Michigan
insurance corporation, at any time on or after October 28, 1993, up to and
not exceeding an aggregate of 84,309 shares of Other Non-Voting Common
Stock or Other Common Stock.
(d) The defined term "Stockholders Agreement" included in Article I is
hereby amended and restated in its entirety:
"Stockholders Agreement" means that certain Amended and Restated
Stockholders Agreement dated as of January 31, 1995 among the Company,
Initial Holder, the Xxxx Capital Investors and certain of the Company's
other stockholders, as amended.
(e) Section 4.2 is hereby amended by amending and restating the
initial sentence thereof (preceding subsection (a) thereof) as follows:
"The number of shares of Class A Non-Voting Stock shall be subject to
adjustment from time to time as hereinafter set forth, except with respect
to the issuance of Excluded Management Shares and Excluded Investor
Shares."
(f) Subsection 4.2(o)(iv) is hereby amended and restated in its
entirety as follows:
"(iv) the issuance of Excluded Management Shares or Excluded Investor
Shares."
(g) Sections 4.2(b), (c) and (d) are each hereby amended by deleting
each reference to "ARTICLE VI" therein and replacing each such reference
with "the Stockholders Agreement".
(h) Sections 4.3, 8.3, 8.5, 8.9 and 9.13, as well as ARTICLE VI, are
hereby deleted in their entirety.
4. Consent and Waiver. Xxxxxx hereby consents to, and waives any
"Event of Default" (as defined in each of the Warrants) under the Warrants
arising by reason of, the issuance by the Company as of October 31, 1994 and
November 15, 1994, respectively, to certain management employees (including
Xxxxx X. Xxx XX and Xxxxx X. Xxxxx) of the Company and its Subsidiaries, of (a)
options to purchase 900 shares of the Company's Other Common Stock for a
purchase price of $9.00 per share (which options were issued in connection with
the Premier One Products, Inc. acquisition), and (b) options to purchase 40,000
shares of the Company's Other Common Stock for a purchase price of $26.00 per
share. Xxxxxx and the Company hereby agree that such issuances were, for
purposes of the Warrants, issuances of Excluded Management Shares and no
adjustments shall be made under Article IV of either of the Warrants with
respect thereto.
5. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(b) Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision hereof shall be held to be prohibited by or invalid or
unenforceable in whole or in part under applicable law in any jurisdiction, then
such provision shall be ineffective only to the extent of such prohibition,
invalidity or unenforceability, without invalidating the remaining provisions of
this Amendment.
(c) This Amendment shall be governed by, and construed under and
enforced in accordance with, the internal laws (as opposed to the conflicts of
law provisions) and decisions of the State of Illinois.
(d) This Amendment, taken with the other Loan Documents, constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior negotiations, warranties, commitments, offers,
letters of interest or intent, proposal letters, contracts, writings or other
agreements and understandings with respect thereto.
(e) No waiver, and no modification or amendment of any provision of
this Amendment shall in any event be effective unless specifically made in
writing and duly signed by the party to be bound thereby. Any such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
(f) This Amendment may be executed in one or more counterparts, and
any party to this Amendment may execute and deliver this Amendment by executing
and delivering any of such counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same Amendment.
(g) No failure or delay on the part of any party hereto to exercise
any right, power or privilege hereunder or under any instrument executed
pursuant hereto shall operate as a waiver nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(h) Section, subsection and paragraph titles, captions and headings
herein are inserted only as a matter of convenience and for reference, shall not
be deemed to constitute a part hereof, and in no way define, limit, extend or
describe the scope of this Amendment or the intent of any provisions hereof.
(i) Any reference to either of the Warrants contained in any notice,
request, certificate or other document shall, after the execution and delivery
of this Amendment, be deemed to include this Amendment unless the context shall
otherwise specify.
(j) The parties agree and acknowledge that nothing contained in this
Amendment in any manner or respect limits or terminates any of the provisions of
the Warrants other than as expressly set forth herein and further agree and
acknowledge that the Warrants, as amended hereby, remain and continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
officers, have executed this Amendment as of the date first above written.
NUTRACEUTICAL INTERNATIONAL
CORPORATION
By: /s/ Xxxxx X. Xxx XX
------------------------------
Title: Chairman
----------------------------
XXXXXX FINANCIAL, INC.
By: (signature illegible)
------------------------------
Title: Vice President
----------------------------
