Exhibit 4.29
SERIES C WARRANT AGREEMENT
SERIES C WARRANT AGREEMENT, dated as of October 20, 2000 (this
"Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation
(the "Company"), and Computershare Investor Services, LLC, a Delaware
limited liability company, as Warrant Agent (the "Warrant Agent").
WHEREAS, in connection with the Plan, the Company has agreed to issue
certain warrants (the "Warrants") evidenced by the Warrant Certificates
substantially in the form of Exhibit A hereto to purchase shares of the
Company's Common Stock, no par value (the "Common Stock"), at the exercise
price of $2.14 per 0.04326865 share (the "Exercise Price") from the
Original Issuance Date until October 20, 2006 (the "Exercise Period"),
pursuant to the terms of such Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with
the issuance of Series C Warrant Certificates (together with any
certificates issued in replacement or substitution therefor, the "Warrant
Certificates") to the registered holders (the "Holders") and other matters
as provided herein;
NOW, THEREFORE, in consideration of the foregoing and the covenants
of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the terms and conditions set forth herein, the
parties hereby agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance
with the instructions set forth hereinafter in this Agreement, and the
Warrant Agent hereby accepts such appointment.
Section 2. Registration. The Company shall register each
Warrant upon records to be maintained by the Company for that purpose in
the name of the record holder of such Warrant from time to time. The
Company and the Warrant Agent may deem and treat the registered Holder of
each Warrant as the absolute owner thereof for the purpose of any exercise
thereof, any distribution to the Holder thereof and for all other purposes.
Section 3. Transfers and Exchanges of Warrants and Warrant Shares.
(a) Registration of Transfers and Exchanges. The Company
and the Warrant Agent shall register the transfer of any Warrants upon records
to be maintained by the Company for that purpose upon surrender of a
Warrant Certificate, with the Form of Assignment attached thereto
appropriately completed and duly signed, to the Company or the Warrant
Agent at the office specified in or pursuant to Section 4(c). Upon any such
registration of transfer, a new Warrant Certificate, in substantially the
form of Exhibit A hereto, evidencing the Warrants so transferred shall be
issued to the transferee and a new Warrant Certificate, in similar form,
evidencing the remaining Warrants not so transferred, if any, shall be
issued to the then registered Holder thereof.
(b) Warrants Exchangeable for Different Denominations.
Each Warrant Certificate is exchangeable, upon the surrender thereof by the
Holder thereof at the office of the Company or the Warrant Agent specified
in or pursuant to Section 4(c), for new Warrant Certificates, in
substantially the form of Exhibit A hereto, evidencing in the aggregate the
right to purchase the number of Warrant Shares which may then be purchased
thereunder, each of such new Warrant Certificates to be dated the date of
such exchange and to represent the right to purchase such number of Warrant
Shares as shall be designated by said Holder thereof at the time of such
surrender.
Section 4. Duration and Exercise of Warrants.
(a) Exercise. Each Warrant shall be exercisable by the
registered Holder thereof on any Business Day during the Exercise Period.
(b) Ratio. Subject to the provisions of the Warrant
Certificates and this Agreement, including adjustments to the number of
Warrant Shares issuable on the exercise of each Warrant and to the Exercise
Price pursuant to Section 8, the Holder of each Warrant during the Exercise
Period shall have the right to purchase from the Company (and the Company
shall be obligated to issue and sell to such holder of a Warrant) at the
Exercise Price 0.04326865 fully paid Warrant Shares per Warrant which is
non-assessable.
(c) Payment of Exercise Price. Subject to Sections 5, 9
and 11, upon surrender of each Warrant Certificate, with the Form of
Election to Purchase attached thereto duly filled in and signed, to the
Company at its office at 00000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Chief Financial Officer, to the Warrant Agent at its office at
Xxx Xxxxx XxXxxxx Xx., Xxxxxxx, Xxxxxxxx 00000, or at such other address as
the Company or the Warrant Agent may specify in writing to the then
registered holder of the Warrants, and upon either (i) payment of the
Exercise Price multiplied by the number of Warrant Shares then issuable
upon exercise of the Warrants being exercised in lawful money of the United
States of America or (ii) notice by the registered Holder of the Warrant
Certificate of its election to exercise the Warrants evidenced by such
Warrant Certificate on a cashless basis in the manner described in
subsection (d) of this Section 4, all as specified by the Holder of the
Warrant Certificate in the Form of Election to Purchase, the Company or the
Warrant Agent shall promptly issue and cause to be delivered to or upon the
written order of the registered Holder of such Warrants, and in such name
or names as such registered Holder may designate, one or more certificates
for the Warrant Shares issued upon such exercise of such Warrants. Any
Person so designated to be named therein shall be deemed to have become
Holder of record of such Warrant Shares as of the Date of Exercise of such
Warrants.
The "Date of Exercise" of any Warrant means the date on which
the Company or the Warrant Agent shall have received (i) the Warrant
Certificate representing such Warrants, with the Form of Election to
Purchase attached thereto appropriately completed and duly signed, and (ii)
unless the Holder of such Warrant Certificate makes the election described
in subsection (d) of this Section 4, payment of the Exercise Price for such
Warrant.
(d) Cashless Exercise. In lieu of paying the Exercise
Price upon exercise of the Warrants, the Holder of any Warrant Certificate
may elect to receive a number of Warrant Shares whose aggregate Market
Price as of the Date of Exercise is equal to the fair value of such Warrant
Certificate (or the portion hereof evidencing the number of Warrants then
being exercised) on such date, in which event the Company shall issue to
the Holder of such Warrant Certificate, upon receipt of notice of such
election, a number of Warrant Shares equal to (i) the number of Warrant
Shares that would otherwise be issuable upon payment of the Exercise Price
of the Warrants then being exercised minus (ii) the number of shares of
Common Stock having an aggregate Market Price equal to the product obtained
by multiplying the Exercise Price by the number of Warrant Shares otherwise
issuable upon payment of the Exercise Price of the Warrants then being
exercised.
(e) Partial Exercise. The Warrants evidenced by each
Warrant Certificate shall be exercisable, either as an entirety or, from
time to time, for part only of the number of Warrants evidenced by such
Warrant Certificate. If less than all of the Warrants evidenced by any
Warrant Certificate are exercised at any time, the Company or the Warrant
Agent shall issue, at its expense, to the relevant Holder, a new Warrant
Certificate, in substantially the form of the surrendered Warrant
Certificate, for the remaining number of Warrants evidenced by such Warrant
Certificate.
Section 5. Payment of Taxes. The Company will pay all transfer
and stock issuance taxes attributable to the issuance of the Warrants and
the Warrant Shares; provided, however, that the Company shall not be
required to pay any tax in respect of the transfer of Warrants, or the
issuance or delivery of certificates for Warrant Shares or other securities
in respect of the Warrant Shares upon the exercise of Warrants, to a Person
other than a then existing registered Holder of Warrants or an Affiliate of
such registered Holder.
Section 6. Mutilated or Missing Warrant Certificate. If a
Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company or the Warrant Agent will, upon request by the registered Holder of
such Warrant Certificate, issue to such Holder, in exchange for and upon
cancellation of the mutilated Warrant Certificate, or in substitution for
the lost, stolen or destroyed Warrant Certificate, a new Warrant
Certificate, in substantially the form of the replaced Warrant Certificate,
of like tenor and representing the equivalent number of Warrants, but, in
the case of loss, theft or destruction, only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of the Warrant Certificate and, if requested by the Company or
the Warrant Agent, a written agreement of indemnity and/or a surety bond
from the Holder satisfactory to the Company.
Section 7. Reservation, Listing and Issuance of Warrant Shares.
(a) Available Warrant Shares. The Company will at all
times have authorized, and reserve and keep available, free from preemptive
rights, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon the exercise of the Warrants, the number of Warrant
Shares issuable upon exercise of the Warrants.
(b) Adjustments Below Par. Before taking any action which
could cause an adjustment pursuant to Section 8 reducing the Exercise Price
below the then par value (if any) of the Warrant Shares, the Company will
take any corporate action which may be necessary in order that the Company
may validly and legally issue at the Exercise Price as so adjusted Warrant
Shares that are fully paid and non-assessable.
(c) Warrant Shares Duly Authorized. The Company covenants
that all Warrant Shares will, upon issuance in accordance with the terms of
this Agreement, be (i) duly authorized, validly issued, fully paid and
non-assessable, and (ii) free from all taxes with respect to the issuance
thereof and from all adverse claims, liens, pledges, encumbrances, charges
and security interests created by the Company.
Section 8. Adjustments of Price and Number of Warrant Shares.
(a) Adjustment of Number of Warrant Shares Issuable. Upon
each adjustment of the Exercise Price pursuant to this Section 8, the
Holder of a Warrant shall be entitled to purchase, at the Exercise Price in
effect after such adjustment, a number of Warrant Shares equal to the
amount obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon
exercise of such Warrant immediately prior to such adjustment and dividing
the product thereof by the Exercise Price resulting from such adjustment.
(b) Adjustment of Price upon Issuance of Common Stock. If
and whenever after the date hereof, the Company shall issue or sell any
shares of Common Stock for a consideration per share less than 100% of the
Market Price (as hereinafter defined) at the time of such issue or sale,
then forthwith upon such issue or sale, the Exercise Price shall be reduced
to the price determined as follows: by multiplying the then existing
Exercise Price by a fraction (A) the numerator of which shall be the number
of shares of Common Stock Deemed Outstanding immediately prior to such
issue or sale plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so to be
offered would purchase at the current Market Price and (b) the denominator
of which shall be the number of shares of Common Stock Deemed Outstanding
plus the number of additional shares of Common Stock to be offered for
issue or sale.
(c) Additional Adjustments. For the purposes of subsection
(b) of this Section, the following clauses shall also be applicable:
(i) Issuance of Rights or Options. If at any time
the Company shall grant (whether directly or by assumption in a
merger in which the Company is the surviving Company or otherwise)
any rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or securities convertible into
or exchangeable for Common Stock (such convertible or exchangeable
stock or securities being herein called "Convertible Securities")
whether or not such rights or options or the right to convert or
exchange any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon the
exercise of such rights or options or upon conversion or exchange of
such Convertible Securities (determined as provided below) shall be
less than the Market Price in effect immediately prior to the time of
the granting of such rights or options, then the total maximum number
of shares of Common Stock issuable upon the exercise of such rights
or options or upon conversion or exchange of the total maximum amount
of such Convertible Securities issuable upon the exercise of such
rights or options shall (as of the date of granting of such rights or
options) be deemed to have been issued for such price per share, and
the Exercise Price shall be adjusted in accordance with Section 8(b).
Except as provided in clause (iii) of this subsection, no further
adjustments of any Exercise Price shall be made upon the actual issue
of such Common Stock or of such Convertible Securities upon exercise
of such rights or options or upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities. For
the purposes of this clause (i), the price per share for which Common
Stock is issuable upon the exercise of any such rights or options or
upon conversion or exchange of any such Convertible Securities shall
be determined by dividing (A) the total amount, if any, received or
receivable by the Company as consideration for the granting of such
rights or options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such
rights or options, plus, in the case of such rights or options which
relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of
such Convertible Securities and upon the conversion or exchange
thereof, by (B) the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon
conversion or exchange of all such Convertible Securities issuable
upon the exercise of such rights or options.
(ii) Issuance of Convertible Securities. If the
Company shall issue (whether directly or by assumption in a merger in
which the Company is the surviving corporation or otherwise) or sell
any Convertible Security, whether or not the rights to exchange or
convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon conversion or exchange
of such Convertible Securities (determined as provided below) shall
be less than the Market Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall (as of the date of the issue or sale of
such Convertible Securities) be deemed to have been issued for such
price per share, and the Exercise Price shall be adjusted in
accordance with Section 8(b), provided that (A) except as provided in
clause (iii) of this subsection, no further adjustments of any
Exercise Price shall be made upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities, and
(B) if any such issue or sale of such Convertible Securities is made
upon exercise of any rights to subscribe for or to purchase or any
option to purchase any such Convertible Securities for which
adjustments of any Exercise Price have been or are to be made pursuant
to other provisions of this subsection (c), no further adjustment of
any Exercise Price shall be made by reason of such issue or sale. For
the purposes of this clause (ii), the price per share for which Common
Stock is issuable upon conversion or exchange of Convertible
Securities shall be determined by dividing (C) the total amount, if
any, received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (D) the total
maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities.
(iii) Readjustments. If the purchase price provided
for in any rights or options referred to in clause (i) above, or the
additional consideration, if any, payable upon the conversion or
exchange of Convertible Securities referred to in clause (i) or (ii)
above, or the rate at which any Convertible Securities referred to in
clause (i) or (ii) above are convertible into or exchangeable for
Common Stock, shall be reduced, then the Exercise Price in effect at
the time of such event shall forthwith be readjusted to the Exercise
Price which would have been in effect at such time had such rights,
options or Convertible Securities then outstanding provided for such
reduced purchase price, additional consideration or conversion rate,
as the case may be, at the time initially granted, issued or sold. On
the expiration of any such option or right or the termination of any
such right to convert or exchange such Convertible Securities, the
Exercise Price and number of Warrant Shares issuable pursuant hereto
then in effect shall be readjusted to the Exercise Price and number
of Warrant Shares which would have been in effect at the time of such
expiration or termination had such warrant, right, option or
Convertible Security never been issued, and the shares of Common
Stock issuable thereunder shall no longer be Common Stock Deemed
Outstanding.
(iv) Consideration for Stock. If any shares of Common
Stock or Convertible Securities or any rights or options to purchase
any such Common Stock or Convertible Securities shall be issued or
sold for cash, the consideration received therefor shall be deemed to
be the amount received by the Company therefor, without deduction
therefrom of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. If any shares of Common Stock or
Convertible Securities or any rights or options to purchase any
such Common Stock or Convertible Securities shall be issued or
sold for a consideration other than cash, the amount of the
consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration as determined
reasonably and in good faith by the board of directors of the
Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
Company in connection therewith. If the Company shall declare or
pay a dividend or make any other distribution upon any stock of
the Company payable in Common Stock, Convertible Securities or
options, warrants or rights to purchase Common Stock or
Convertible Securities, the securities issuable in payment of
such dividend or distribution shall be deemed to have been issued
or sold without consideration. If any shares of Common Stock or
Convertible Securities or any rights or options to purchase such
shares of Common Stock or Convertible Securities shall be issued
in connection with any merger or consolidation in which the
Company is the surviving corporation (other than any
consolidation or merger in which the previously outstanding
shares of Common Stock of the Company shall be changed into or
exchanged for the stock or other securities of another
corporation), the amount of consideration therefor shall be
deemed to be the fair value as determined reasonably and in good
faith by the board of directors of the Company or such portion of
the assets and business of the non-surviving corporation as such
board may reasonably and in good faith determine to be
attributable to such shares of Common Stock, Convertible
Securities, rights or options, as the case may be. In the event
of any consolidation or merger of the Company in which the
Company is not the surviving corporation or in which the
previously outstanding shares of Common Stock of the Company
shall be changed into or exchanged for the stock or other
securities of another entity or in the event of any sale of all
or substantially all of the assets of the Company for stock or
other securities of any entity, the Company shall be deemed to
have issued a number of shares of its Common Stock for stock or
securities or other property of such entity computed on the basis
of the actual exchange ratio on which the transaction was
predicated and for a consideration equal to the fair market value
on the date of such transaction of all such stock or securities
or other property of such entity, and if any such calculation
results in adjustment of the Exercise Price in accordance with
Section 8(b), the determination of the number of shares of Common
Stock issuable upon exercise of the Warrants immediately prior to
such merger, consolidation or sale, for purposes of Section 8(e),
shall be made after giving effect to such adjustment of the
Exercise Price.
(v) Record Date. If the Company shall take a record
of the holders of its Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in Common
Stock or in Convertible Securities or (B) to rights to subscribe for
or to purchase, or any options for the purchase of, Common Stock or
Convertible Securities, then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to
have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such
right, as the case may be.
(vi) Treasury Shares. 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, and the disposition of any
such shares shall be considered an issue or sale of Common Stock for
the purposes of this Section 8.
(d) Subdivision or Combination of Stock. If the Company
shall at any time subdivide (whether by stock split, stock dividend,
recapitalization or otherwise) the outstanding shares of Common Stock into
a greater number of shares or pay a dividend or make a distribution to
holders of Common Stock in the form of Common Stock, the Exercise Price in
effect immediately prior to such subdivision, payment or distribution shall
be proportionately reduced; conversely, if the outstanding shares of Common
Stock shall be combined into a smaller number of shares (whether by reverse
stock split or otherwise), the Exercise Price in effect immediately prior
to such combination shall be proportionately increased.
(e) Adjustments for Consolidation, Merger, Sale of
Assets, Reorganization, etc. If the Company (i) consolidates with or merges
into any other entity and is not the continuing or surviving corporation of
such consolidation or merger, or (ii) permits any other entity to
consolidate with or merge into the Company and the Company is the
continuing or surviving corporation but, in connection with such
consolidation or merger, the Common Stock is changed into or exchanged for
stock or other securities of any other corporation or cash or any other
assets, or (iii) transfers all or substantially all of its properties and
assets to any other entity, or (iv) effects a recapitalization, capital
reorganization or reclassification of the capital stock of the Company in
such a way that holders of Common Stock shall be entitled to receive stock,
securities, cash or assets with respect to or in exchange for Common Stock
(each of the transactions referred to in the foregoing clauses (i) through
(iv) being an "Organic Change"), then, and in each such case, proper
provision shall be made in form and substance reasonably satisfactory to
the Holders so that, upon the basis and upon the terms and in the manner
provided in this subsection (f), the holder of this Warrant Certificate,
upon the exercise of each Warrant at any time after the consummation of
such Organic Change, shall be entitled to receive (at the aggregate
Exercise Price in effect for all Warrant Shares issuable upon such exercise
immediately prior to such consummation as adjusted to the time of such
transaction), in lieu of shares of Common Stock issuable upon such exercise
prior to such consummation, the stock and other securities, cash and assets
to which such holder would have been entitled upon such consummation if
such holder had so exercised such Warrant immediately prior thereto
(subject to adjustments subsequent to such corporate action as nearly
equivalent as possible to the adjustments provided for in this Section 8).
(f) Notice of Adjustment. Upon any adjustment of any
Exercise Price, then and in each such case the Company or the Warrant Agent
(at the expense of the Company), shall promptly deliver a notice to the
registered holder of the Warrants, which notice shall state the Market
Price, if any adjustment depends upon a determination of Market Price, and
the Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon
the exercise of each Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
(g) Other Notices. In case at any time:
(i) the Company shall declare any cash
dividend on its Common Stock;
(ii) the Company shall pay any dividend payable in
stock upon its Common Stock or make any distribution (other than
regular cash dividends) to the holders of its Common Stock;
(iii) 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;
(iv) the Company shall authorize to all holders of
its Common Stock the distribution of evidence of its indebtedness or
assets (other than cash dividends or cash distributions payable out
of earnings or earned surplus or dividends payable in Common Stock);
(v) there shall be any Organic Change;
(vi) there shall be a voluntary or involuntary
dissolution, liquidation, bankruptcy, assignment for the benefit of
creditors, or winding up of the Company; or
(vii) the Company proposes to take any other action or
an event occurs which would require an adjustment of the Exercise
Price pursuant to subsection (j) of this Section 8;
then, in any one or more of said cases, the Company or the Warrant Agent
(upon receiving written notice from the Company) shall give written notice,
addressed to the holder of each Warrant Certificate at the address of such
holder as shown on the books of the Company, of (1) the date on which the
books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights, or (2) the date (or, if not
then known, a reasonable approximation thereof by the Company) on which
such Organic Change or other action or event, as the case may be, shall
take place (or, in the case of clause (vi) above, the date on which the
relevant action or event took place). 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 participate in such dividends, distribution
or subscription rights, or shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such Organic Change,
dissolution, liquidation, bankruptcy, assignment for the benefit of
creditors, winding up, or other action or event, as the case may be. Such
written notice shall be given at least twenty days prior to the action in
question and not less than twenty days prior to the record date or the date
on which the Company's transfer books are closed in respect thereto;
provided, that no advance notice need be given of any event or action
specified in clause (vi) above, but the Company or the Warrant Agent shall
give notice of such event as promptly thereafter as practicable. The
Company shall be solely responsible for the payment of all costs and
expenses associated with the provision of any notices referenced herein.
(h) Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 8 but not expressly provided
for by such provisions (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights with equity
features), then the Company shall appoint a firm of independent certified
public accountants (which may be the regular auditors of the Company) of
recognized national standing, which shall give their opinion upon the
adjustment, if any, on a basis consistent with the basic intent and
principles established in the other provisions of this Section 8, necessary
to preserve, without dilution, the exercise rights of the registered
holders of the Warrant Certificates. Upon receipt of such opinion, the
Company shall forthwith make the adjustments described therein.
(i) Certain Exceptions to Antidilution Protection.
Notwithstanding anything to the contrary in this Section 8, there shall be
no adjustment to the Exercise Price or to the number of Warrant Shares
issuable upon exercise of the Warrants: (i) in connection with the sale or
issuance of the Warrant Certificates and Warrant Shares hereunder; (ii)
upon any issuance or exercise of the Other Warrants in accordance with the
terms thereof in effect on the Original Issuance Date and all warrants
issued upon the partial exercise, transfer or division of, or in
substitution for, any such warrants, or any adjustment to the number of
shares issuable under the Other Warrants pursuant to the terms thereof as
in effect on the Original Issuance Date; (iii) upon exercise of any
Convertible Security outstanding on the Original Issuance Date; (iv) upon
exercise of any options under the Management Option Plan; or (v) upon the
issuance of any other securities as contemplated by the Plan, including the
new Series A Senior Preferred Stock or the new Common Stock (each as
described therein).
(j) Other Securities. If at any time, as a result of an
adjustment made pursuant to this Section 8, any holder of Warrants shall
become entitled to purchase any securities of the Company other than shares
of Common Stock, the number or amount of such other securities so
purchasable and the consideration for such securities shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions contained in this Section 8 hereof.
Section 9. No Stock Rights. No holder of any Warrant
Certificate, as such, shall be entitled to vote or be deemed the holder of
Common Stock or any other securities of the Company which may at any time
be issuable on the exercise thereof, nor shall anything contained herein be
construed to confer upon the Holder of any Warrant Certificate, as such,
the rights of a stockholder of the Company or the right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or give or withhold consent to any corporate action or to
receive notice of meetings or other actions affecting stockholders (except
as provided herein), or to receive dividends (except as provided herein) or
subscription rights or otherwise, until the Date of Exercise of the
Warrants shall have occurred.
Section 10. Fractional Shares. The Company may, but shall not be
required to, issue fractions of Warrant Shares upon exercise of the
Warrants or distribute certificates which evidence fractional Warrant
Shares. As to any fractional share of Common Stock which the Holder would
otherwise be entitled to subscribe for from the Company upon such exercise,
the Company may purchase from the Holder such unissued fractional share at
a price equal to an amount calculated by multiplying such fractional share
(calculated to the nearest 1/100th of a share) by the then-Market Price
determined in accordance with the terms of this Agreement. Payment of such
amount shall be made in cash or by check payable to the order of the Holder
at the time of delivery of any certificate or certificates arising upon
such exercise.
Section 11. No Registration under Securities Act. Neither the
Warrants nor the Warrant Shares have been registered under the Securities
Act, but they have been issued pursuant to a valid exemption from the
Securities Act pursuant to Section 1145 of the Bankruptcy Code. The Holder
of each Warrant Certificate, by acceptance thereof, represents that it is
acquiring the Warrants to be issued to it for its own account and not with
a view to the distribution thereof, and agrees not to sell, transfer,
pledge or hypothecate any Warrants or any Warrant Shares unless a
registration statement is effective for such Warrants or Warrant Shares
under the Securities Act or in the opinion of such holder's counsel (a copy
of which opinion shall be delivered to the Company) such transaction is
exempt from the registration requirements of the Securities Act; provided
that Warrants and Warrant Shares issued to such Holder may be transferred
to any Affiliate of such Holder, without any such registration (to the
extent permitted by law) or opinion, subject to the foregoing restriction
on any further sale, transfer, pledge or hypothecation by such Affiliate.
Section 12. Payment for Services. The Company agrees to pay to
the Warrant Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Warrant Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder.
Section 13. Indemnification. Except as set forth in the
following paragraph, the Warrant Agent and its affiliates, members,
officers, directors, employees, agents, attorneys, successors and assigns
(each, an "Indemnified Party") shall be indemnified and held harmless by
the Company for and against any and all liabilities, losses, damages,
claims, costs and expenses, interest, awards, judgments and penalties
(including, without limitation, reasonable attorneys' and consultants' fees
and expenses) suffered or incurred by them, arising out of or resulting
from any of the services provided under this Agreement. The obligations of
the Company under this section shall survive any termination of this
Agreement and the resignation or removal of the Warrant Agent.
Section 14. Limitation of Liability. The Warrant Agent shall be
obligated only for the performance of such duties as are specifically set
forth herein. The Warrant Agent shall have no liability or obligation under
this Agreement except for the Warrant Agent's gross negligence or willful
misconduct. The Warrant Agent shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any fact or
circumstance not specifically set forth herein. The Warrant Agent may rely
upon any instrument, whether bearing original, conformed or facsimile
signatures, not only as to its due execution, validity and effectiveness,
but also as to the truth and accuracy of any information contained therein
which the Warrant Agent shall in good faith believe to be genuine and to
have been signed or presented by the person or parties purporting to sign
the same. In no event shall the Warrant Agent be liable for incidental,
indirect, special, consequential or punitive damages.
Section 15.Certain Definitions. The following terms have the
meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common
control with such Person.
"Business Day" means any day, other than a Saturday, Sunday or
any other day on which banks are required or authorized to close in the
State of Illinois or the State of Indiana.
"Common Stock" is defined in the second paragraph hereof.
"Common Stock Deemed Outstanding" means, at any given time, (x)
the number of shares of Common Stock actually outstanding at such time,
plus (y) the number of shares of Common Stock issuable pursuant to any
outstanding Convertible Securities, or rights or options to purchase Common
Stock or Convertible Securities but only to the extent such Convertible
Securities, rights or options are In the Money at such time.
"Company" is defined in the first paragraph hereof.
"Convertible Securities" is defined in Section 8(c)(i).
"Date of Exercise" is defined in Section 4(c).
"Exercise Period" is defined in the second paragraph hereof.
"Exercise Price" is defined in the second paragraph hereof.
"Holder" is defined in the third paragraph hereof.
"In the Money" means, as to any Convertible Securities or
rights or options to purchase Common Stock or Convertible Securities at any
time, that such Convertible Securities, rights or options have a conversion
price, exercise price or similar price per share of Common Stock that is
less than the Market Price as of the date of determination.
"Management Option Plan" shall mean that certain management
option plan to be entered into on the Original Issuance Date.
"Market Price" shall mean the average of the daily closing
prices per share of the Common Stock for the ten consecutive trading days
immediately preceding the day as of which "Market Price" is being
determined (exclusive of "ex-dividend" and similar dates) provided,
however, that (i) Market Price shall be the closing price per share of the
Common Stock of the Company on the date of issuance with respect to the
issuance of options to purchase Common Stock of the Company issued to
directors, officers or employees of the Company and (ii) Market Price shall
be the closing price per share of the Common Stock of the Company on the
date the underwriting agreement is executed with respect to any bona fide
underwritten public offering of the Common Stock of the Company involving
net cash proceeds to the Company of at least $1,000,000. The closing price
for each day shall be the last sale price regular way or, in case no such
sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the principal national securities
exchange on which the shares are listed or admitted to trading, or if the
shares are not so listed or admitted to trading, on the National Market
System of NASDAQ or, if prices for the shares are not quoted on such
National Market System, the average of the highest reported bid and lowest
reported asked prices as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or through a similar organization
if NASDAQ is no longer reporting such information. If shares of the Common
Stock are not listed or admitted to trading on any exchange or quoted
through NASDAQ or any similar organization, the "Market Price" shall be
deemed to be the higher of (x) the book value of a share of the Common
Stock as determined by any firm of independent certified public accountants
of recognized national standing, selected by the board of directors of the
Company, as at the last day of any month ending within sixty days preceding
the date as of which the determination is to be made and (y) the fair value
thereof determined in good faith by a nationally recognized independent
investment banking firm selected by the Company and reasonably acceptable
to the holders of a majority of the Warrants as of a date which is within
30 days of the date as of which the determination is to be made (the fees
and expenses of such independent certified public accountants and
independent investment banking firm to be paid by the Company); provided,
however, that in the case of any determination of Market Price pursuant to
this sentence, the Market Price shall not be less than the amount of the
consideration per share received by the Company in respect of the most
recent sale, transfer or other issuance of Common Stock by the Company
(other than as a result of the exercise of any option or warrant or the
conversion of any Convertible Security) in an arms' length transaction to
an unaffiliated third party within the 90-day period immediately preceding
the date as to which the determination is to be made.
Anything herein to the contrary notwithstanding, if the Company
shall issue any shares of Common Stock or Convertible Securities or rights
or options to purchase Common Stock or Convertible Securities in connection
with the acquisition by the Company of the stock or assets of any other
corporation or the merger of any other corporation into the Company, the
Market Price shall be determined in the manner described in this definition
as of the date the number of shares of Common Stock, Convertible Securities
(or in the case of Convertible Securities other than stock, the aggregate
principal amount of Convertible Securities), rights or options was
determined (as set forth in a written agreement between the Company and the
other party to the transaction) rather than on the date of issuance of such
shares of Common Stock, Convertible Securities, rights or options.
"Organic Change" is defined in Section 8(e).
"Original Issuance Date" means October 20, 2000.
"Other Warrants" shall mean (i) the 5 year Warrants to purchase
678,334 shares at an exercise price of $0.01 per share, and (ii) the 5 year
Warrants to purchase 555,556 shares at an exercise price of $30.00 per
share, in each case as contemplated by the Plan.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Plan" shall mean the Joint Prepackaged Plan of Reorganization
of Tokheim Corporation and its subsidiary debtors as filed with and
approved by the United States Bankruptcy Court for the District of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant" is defined in the second paragraph hereof.
"Warrant Agent" is defined in the first paragraph hereof.
"Warrant Certificate" is defined in the third paragraph hereof.
"Warrant Share" means the Common Stock issuable upon the
exercise of the Warrants.
Section 16.Miscellaneous.
(a) Governing Law. This Agreement shall be governed in
all respects by the internal laws of the State of Indiana.
(b) Entire Agreement. This Agreement, together with the
Warrant Certificates, constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter hereof.
(c) Amendment. The Company and the Warrant Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Warrant Certificates in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Warrant
Certificates. No other changes may be made to this Agreement without the
consent of the Holder.
(d) Notices, etc. Each notice, demand, request, request
for approval, consent, approval, disapproval, designation or other
communication (each of the foregoing being referred to herein as a notice)
required or desired to be given or made under this Agreement shall be in
writing (except as otherwise provided in this Agreement), and shall be
effective and deemed to have been received when delivered in person, when
sent by fax with receipt acknowledged, five (5) days after having been
mailed by certified or registered United States mail, postage prepaid,
return receipt requested, or the next Business Day after having been sent
by a nationally recognized overnight mail or courier service, receipt
requested. Notices shall be addressed as follows: (x) if to any Holder, at
such address or fax number as such Holder shall have furnished the Company
in writing, or (y) if to the Company, at the address or fax number of its
principal executive offices set forth below its signature hereon or at such
other address or fax number as the Company shall have furnished to the
Holders. Any notice or other communication required to be given hereunder
to a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(e) Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer than all of
the parties hereto, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
(f) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision.
(g) Captions. Captions are for descriptive purposes only
and shall not control or alter the meaning of this Agreement as set forth
in the text.
(h) Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their respective successors and
assigns. Whether or not any express assignment has been made in this
Agreement, the provisions of this Agreement that are for the Holders of
Warrant Certificates are also for the benefit of, and shall be enforceable
by, all subsequent holders of Warrant Certificates. The acceptance of the
Warrant Certificate by the Holder shall be deemed an acceptance of the
terms and conditions of the Warrant Agreement.
(i) Remedies. The Company and the Holders acknowledge
that there would be no adequate remedy at law if any Person fails to
perform any of its obligations hereunder, and accordingly agree that the
Company and each Holder, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of another party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of
the United States or any State thereof having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
TOKHEIM CORPORATION
By:
-------------------------------------
Name:
Title:
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
COMPUTERSHARE INVESTOR SERVICES, LLC
By:
-------------------------------------
Name:
Title:
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention:
------------------------------
Facsimile:
------------------------------
EXHIBIT A
[FORM OF FACE OF WARRANT CERTIFICATE]
WARRANT NO. _____
NUMBER OF WARRANT(S): _____
TOKHEIM CORPORATION
SERIES C WARRANT CERTIFICATE
Dated as of October [o], 2000
Series C Warrants to Purchase Common Stock
This certifies that ____________ or registered assigns (the
"Holder"), is the registered owner of the number of warrants set forth
above (the "Warrants"), each of which represents the right, at any time
after ________________ (the "Original Issuance Date") and on or before 5:00
p.m., Chicago, Illinois time, on ______________ (the "Exercise Period"), to
purchase from Tokheim Corporation, an Indiana corporation (the "Company"),
at the price per share of $_____ (the "Exercise Price") or by the cashless
exercise provisions of Section 4(d) of the Warrant Agreement (as defined
below), 0.04326865 share of Common Stock, no par value, of the Company as
such stock was constituted as of the Original Issuance Date, subject to
adjustment as provided in the Warrant Agreement hereinafter referred to,
upon surrender hereof, with the subscription form on the reverse hereof
duly executed, by hand or by mail to the Company, and simultaneous payment
in full (by certified or official bank or bank cashier's check payable to
the order of the Company, or by wire transfer of immediately available
funds to an account designated by the Company) of the Exercise Price in
respect of each Warrant represented by this Warrant Certificate that is so
exercised, all subject to the terms and conditions hereof and of the
Warrant Agreement.
Upon any partial exercise of the Warrants represented by this
Warrant Certificate, there shall be issued to the holder hereof a new
Warrant Certificate representing the Warrants that were not exercised.
No fractional shares are required to be issued upon the exercise of
rights to purchase hereunder, and as to any fraction of a share otherwise
issuable, the Company may make a cash payment in lieu of such issuance, as
provided in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with
a Warrant Agreement, dated as of October [o], 2000 (the "Warrant
Agreement"), between the Company and [o], as Warrant Agent, and is subject
to the terms and provisions contained therein. The Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and
is hereby referred to for a description of the rights, limitation of
rights, obligations, duties and immunities thereunder of the Company and
the registered holders of the Warrants. The Holder of this Warrant
Certificate consents to all terms and provisions of the Warrant Agreement
by acceptance hereof. Copies of the Warrant Agreement are on file at the
office of the Company and may be obtained by writing to the Company as
described below.
All notices, requests, demands and other communications
relating to this Warrant Certificate shall be in writing, including by
facsimile, addressed (a) if to the registered owner hereof, to it at the
address furnished by the registered owner to the Company, (b) if to the
Company, to it at 00000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
facsimile no.: (000) 000-0000, Attention: Chief Financial Officer, or (c)
if to the Warrant Agent, to it at [o], facsimile no.: [o], Attention: [o];
or to such other address as any party shall notify the other party in
writing, and shall be effective, in the case of written notice by mail,
three days after placement into the mails (first class, postage prepaid),
and in the case of notice by facsimile, on the same day as receipt is
confirmed.
This Warrant Certificate shall be binding upon and inure to the
sole and exclusive benefit of the Company, its successors and assigns, the
registered Holder or Holders from time to time of the Warrants and the
Warrant Shares.
This Warrant Certificate shall be construed in accordance with
and governed by the internal laws of the State of Indiana.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Dated: __________, 2000
TOKHEIM CORPORATION
By:
-------------------------------------
Name:
Title:
WARRANT AGENT
By:
-------------------------------------
Name:
Title:
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TOKHEIM CORPORATION
The transfer of this Warrant Certificate and all rights
hereunder is registrable by the registered holder hereof, in whole or in
part, on the register of the Company upon surrender of this Warrant
Certificate at the office or agency of the Company, duly endorsed or
accompanied by a written instrument of transfer duly executed and in form
satisfactory to the Company by the registered holder hereof or his attorney
duly authorized in writing and upon payment of any necessary transfer tax
or other governmental charge imposed upon such transfer or registration
thereof. Upon any partial transfer the Company will cause to be delivered
to such holder a new Warrant Certificate or Certificates with respect to
any portion not so transferred.
This Warrant Certificate may be exchanged at the office or
agency of the Company for Warrant Certificates representing the same
aggregate number of Warrants, each new Warrant Certificate to represent
such number of Warrants as the Holder hereof shall designate at the time of
such exchange.
Prior to the exercise of the Warrants represented hereby, the
Holder of this Warrant Certificate, as such, shall not be entitled to any
rights of a stockholder of the Company, including, but not limited to, the
right to vote, to receive dividends or other distributions, to exercise any
preemptive right or to receive any notice of meetings of stockholders, and
shall not be entitled to receive notice of any proceedings of the Company
except as provided in the Warrant Agreement. Nothing contained herein shall
be construed as imposing any liabilities upon the Holder of this Warrant
Certificate to purchase any securities or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors or
stockholders of the Company or otherwise.
This Warrant Certificate shall be void and all rights
represented hereby shall cease unless exercised before the close of
business on
-----------------.
Witness the facsimile seal of the Company and the signature of
its duly authorized officer.
FORM OF ELECTION TO PURCHASE
(To be executed by the holder of Warrants if such holder desires to
exercise Warrants evidenced by the foregoing Warrant Certificate)
To Tokheim Corporation:
The undersigned hereby irrevocably elects to exercise
____________ Warrants evidenced by the foregoing Warrant Certificate for,
and to [purchase thereunder, _______________ shares of Common Stock
issuable upon exercise of said Warrants and delivery of $___________ (in
cash as provided for in the foregoing Warrant Certificate) and any
applicable taxes payable by the undersigned pursuant to such Warrant
Certificate.][receive, in accordance with Section 4(d) of the Warrant
Agreement, ______ shares of Common Stock issuable upon exercise of said
Warrants and delivery of any applicable taxes payable by the undersigned
pursuant to such Warrant Agreement].
The undersigned requests that certificates for such shares be
issued in the name of _______________________________.
PLEASE INSERT SOCIAL
SECURITY OR TAX
IDENTIFICATION NUMBER
----------------------------------
----------------------------------
----------------------------------
(Please print name and address)
If said number of Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests
that a new Warrant Certificate evidencing the Warrants not so exercised be
issued in the name of and delivered to
----------------------------------
----------------------------------
----------------------------------
(Please print name and address)
Dated: , Name of holder of Warrant
-------------- ----- (Print:)
-----------------------------
(By:)
-----------------------------
(Title:)
-----------------------------
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, _________________________________
hereby sells, assigns and transfers to each assignee set forth below all of
the rights of the undersigned in and to the number of Warrants (as defined
in and evidenced by the foregoing Warrant Certificate) set opposite the
name of such assignee below and in and to the foregoing Warrant Certificate
with respect to said Warrants and the shares of Common Stock issuable upon
exercise of said Warrants:
Name of Assignee Address Number of Warrants
---------------- ------- ------------------
If the total of said Warrants shall not be all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests
that a new Warrant Certificate evidencing the Warrants not so assigned be
issued in the name of and delivered to the undersigned.
Name of holder of Warrant
(Print:)
------------------------
