Exhibit 10.48
WARRANT AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 24th day of February,
2003, among Xxxxxxxxx & Xxxx, Inc., a Massachusetts corporation (the "Company"),
and the parties listed on Exhibit A hereto as warrantholders (each a
"Warrantholder" and collectively, the "Warrantholders").
WHEREAS, the Company entered into a certain Credit Agreement dated
February 24, 2003 with the Warrantholders pursuant to which the Warrantholders
have committed to provide a revolving credit facility to the Company (as from
time to time amended and in effect, the "Credit Agreement").
WHEREAS, in accordance with the Credit Agreement, the Company is
obligated to issue to each lender participating in such credit facility warrants
exercisable for the Company's common stock, $0.01 par value per share (the
"Common Stock"), and the Warrantholders constitute all of such lenders.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. ISSUANCE OF WARRANTS. Subject to the terms of this Agreement, in
consideration of the Warrantholders becoming party to the Credit Agreement, the
Company agrees to issue to each of the Warrantholders a warrant to purchase the
number of shares of Common Stock set forth opposite such Warrantholder's name on
Exhibit A hereto, each such Warrant to be in the form attached hereto as Exhibit
B (each a "Warrant", and collectively, the "Warrants"). The shares of Common
Stock issuable upon exercise of the Warrant are referred to herein as the
"Warrant Shares". The issuance of the Warrants shall take place simultaneously
with the closing being held this day under the Credit Agreement. The Company
will comply with all applicable provisions of federal and state securities laws
in connection with the issuance of the Warrant Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each of the Warrantholders as follows:
2.1. Organization; Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts. The Company has the corporate power
and authority to execute and deliver this Agreement and the Warrants, and
to perform its obligations hereunder and thereunder.
2.2. Authorization, etc. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and
performance of this Agreement by the Company and the performance of the
Company's obligations hereunder, including
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the issuance and delivery of the Warrants and the reservation of the
Warrant Shares issuable upon exercise of the Warrants has been taken.
This Agreement and the Warrants, when executed and delivered by the
Company, shall constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws and general principles
of equity (regardless of whether considered in a proceeding at law or in
equity). The Warrant Shares, when issued in compliance with the
provisions of this Agreement and the Warrants, will be duly authorized,
validly issued, fully paid and nonassessable and free of any liens or
encumbrances; provided, however, that the Warrant Shares may be subject
to restrictions on transfer under state and/or federal securities laws.
2.3. Capitalization. On the date hereof, the authorized capital
stock of the Company consists solely of 10,000,000 shares of Common
Stock, par value $0.01 per share, and 1,000,000 shares of preferred
stock, par value $0.01 per share (the "Preferred Stock"), of which
3,879,450 shares of Common Stock and zero shares of Preferred Stock are
issued and outstanding, and all such outstanding shares are duly
authorized, validly issued, fully paid and nonassessable and have been or
will have been offered, issued and sold in compliance with applicable
federal and state securities laws.
2.4. Compliance with Laws, Other Instruments, etc. The
execution, delivery and performance by the Company of this Agreement and
the Warrants will not (a) contravene, result in any breach of, or
constitute a default under, the corporate charter or by-laws of the
Company or any of its subsidiaries or any material agreement or
instrument to which the Company or any of its subsidiaries is bound or by
which the Company or any of its subsidiaries or any of their respective
properties may be bound or affected, (b) conflict with or result in a
breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or governmental
authority applicable to the Company or any of its subsidiaries or (c)
violate any provision of any statute or other rule or regulation of any
governmental authority applicable to the Company or any of its
subsidiaries. The Company will comply with all applicable provisions of
federal and stated securities laws in connection with the issuance of the
Warrants and the Warrant Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE WARRANTHOLDERS.
3.1. Investment Intent. Each Warrantholder represents that it is
acquiring its Warrant and Warrant Shares (collectively, the "Securities")
for its own account and not with a view to the distribution thereof,
provided that the disposition of such Warrantholder's property shall at
all times be within such Warrantholder's control. Each Warrantholder
understands that the Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may be
transferred only in compliance with the Securities Act and all other
applicable securities laws, or pursuant to exemptions therefrom.
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3.2. Information and Sophistication. Each Warrantholder
acknowledges that it has received all the information it has requested
from the Company and considers necessary or appropriate for deciding
whether to acquire the Warrants. Each Warrantholder represents that it
has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the issuance of the
Warrants. Each Warrantholder further represents that it has such
knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of this investment.
3.3. Restricted Securities; Limitation on Disposition. Each
Warrantholder understands that the Securities it is receiving are
considered restricted securities under applicable federal and state
securities laws and are thus subject to restrictions on transfer as
further described in the Stockholders Agreement. Each Warrantholder
understands that certificates evidencing the Securities may bear the
following legend and/or any legend imposed or required pursuant to
applicable state securities laws:
"[THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OR
CONVERSION OF THIS WARRANT]/[THESE SHARES] HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT AND LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND LAWS."
4. REPORTING REQUIREMENTS. The Company shall deliver to each holder
of Warrants the following financial information, provided that any delivery
requirement set forth in this section shall be deemed satisfied if such delivery
is made to the holder of a Warrant in its capacity as a party to the Credit
Agreement in accordance with the requirements of Section 6.4 of the Credit
Agreement:
4.1. The annual financial reports specified in section 6.5.1 of
the Credit Agreement as in effect on the date hereof;
4.2. The quarterly financial reports specified in section 6.5.2
of the Credit Agreement as in effect on the date hereof;
4.3. The monthly calculations specified in section 6.5.3 of the
Credit Agreement as in effect on the date hereof; and
4.4. All other information specified in sections 6.5.4 and 6.5.5
of the Credit Agreement as in effect on the date hereof, as and when
required to be delivered pursuant to such sections.
The requirements of this Section 4 shall not be affected by any amendment,
modification or termination of the Credit Agreement.
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5. RULE 144 REPORTING. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations adopted by the Securities and Exchange Commission (the "SEC")
thereunder (or, if it is not required to file such reports, it will, upon the
request of any Warrantholder, make publicly available other information so long
as necessary to permit sales pursuant to Rule 144 under the Securities Act), and
it will take such further action as any Warrantholder may reasonably request,
all to the extent required from time to time to enable such Warrantholder to
sell his Warrant Shares without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Warrantholder,
the Company will deliver to such holder a written statement as to whether it has
complied with such information and filing requirements.
6. PIGGYBACK REGISTRATION. If the Company proposes to register any
shares of Common Stock pursuant to an effective registration statement under the
Securities Act for sale to the public, for its own account and/or for the
account of any stockholder for sale in a public offering of common stock for
cash (a "Public Offering") on a form that would permit registration of Warrant
Shares, the Company will give notice to all Warrantholders of its intention to
do so. Any such holder may, by written request delivered to the Company within
20 days after such notice, request that all or a specified part of the Warrant
Shares (a) held by such holder or (b) issuable to such holder upon exercise of
Warrants held by such holder be included in such registration. The Company
thereupon will use its reasonable efforts to cause to be included in such
registration under the Securities Act all Warrant Shares which the Company has
been so requested to register by such holders, to the extent required to permit
the disposition (in accordance with the methods to be used by the Company or
other holders of shares of common stock in such Public Offering) of the Warrant
Shares to be so registered. The Company will pay all expenses associated with
such registration of Warrant Shares including, without limitation, all
registration and filing fees, listing fees, all fees and expenses of complying
with securities or blue sky laws, all printing expenses, fees and disbursements
of counsel for the Company and its independent public accountants and fees and
disbursements of one counsel for the Warrantholders, but excluding underwriting
discounts, selling commissions, applicable transfer taxes, if any, and fees of
more than one counsel for the Warrantholders.
7. GENERAL.
7.1. Binding Effect; Assignment. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors, permitted transferees and assigns,
heirs, administrators and legal representatives. The Company may not
assign its rights or obligations hereunder. No Warrantholder may assign
any portion of its rights, obligations or liabilities under this
Agreement, except to an affiliate or any other Warrantholder, without the
prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed.
7.2. Amendment; Waiver. No amendment, modification or waiver of
any provision of this Agreement shall be effective unless in writing and
approved by the
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Company and the holders of at least a majority of the aggregate number
of Warrant Shares (on an as-exercised basis).
7.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws (other than the conflict of laws
rules) of The Commonwealth of Massachusetts.
7.4. Credit Document; Counterparts. This Agreement is a Credit
Document (as defined in the Credit Agreement) and may be executed in two
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and same instrument.
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The parties have duly executed this Agreement as of the date first
written above.
THE COMPANY:
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XXXXXXXXX & XXXX, INC.
By /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
THE WARRANTHOLDERS:
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/s/ Xxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxx, Xx.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
