EXHIBIT 99.6
Neither this security nor the shares of stock issuable upon conversion
hereof have been registered under the Securities Act of 1933 (as
amended, the "Act") or under the securities laws of any state.
Neither this security nor the shares of stock issued upon conversion
hereof may be transferred, sold, offered for sale, pledged or
hypothecated in the absence of (a) an effective registration statement
under the Act, (b) an exemption or qualification under applicable
securities laws or (c) delivery to the Company of an opinion of
counsel reasonably satisfactory to the Company that such registration
is not required. Any attempt to transfer, sell, pledge or hypothecate
this security or such shares in violation of these restrictions shall
be void.
▇▇▇▇▇ HORTICULTURE, INC.
STOCK PURCHASE WARRANT
----------------------
Date of Issuance: November 28, 2000 Certificate No. W-1
FOR VALUE RECEIVED, ▇▇▇▇▇ Horticulture, Inc., a Delaware corporation
(the "Company"), hereby grants to Madison Dearborn Capital Partners, L.P. or its
registered assigns (the "Holder") the right to purchase from the Company 440,000
shares of the Company's Common Stock, par value $.01 per share ("Common Stock"),
at a price per share of $3.50 (as adjusted from time to time in accordance
herewith, the "Exercise Price"). The amount and kind of securities obtainable
pursuant to the rights granted hereunder and the purchase price for such
securities are subject to adjustment pursuant to the provisions contained in
this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
-------------------
1A. Exercise Period. The Holder may exercise, in whole or in part,
the purchase rights represented by this Warrant at any time and from time to
time prior to and including December 31, 2005 (the "Exercise Period"). The
Company shall give the Holder(s) written notice of the expiration of the
Exercise Period at least 30 days but not more than 90 days prior to the end of
the Exercise Period.
1B. Exercise Procedure.
------------------
(i) This Warrant shall be deemed to have been exercised when the
Company has
received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in paragraph 1C
below, executed by the person exercising all or part of the purchase rights
represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if this Warrant is not registered in the name of the Purchaser, an
Assignment or Assignments in the form set forth in Exhibit II hereto
evidencing the assignment of this Warrant to the Purchaser; and
(d) either (1) a check payable to the Company in an amount equal to
the product of the Exercise Price multiplied by the number of shares of
Common Stock being purchased upon such exercise (the "Aggregate Exercise
Price"), (2) the surrender to the Company of debt or equity securities of
the Company having a Market Value equal to the Aggregate Exercise Price of
the Common Stock being purchased upon such exercise (provided that for
purposes of this subparagraph, the Market Value of any note or other debt
security or any preferred stock shall be deemed to be equal to the
aggregate outstanding principal amount or liquidation value thereof plus
all accrued and unpaid interest thereon or accrued or declared and unpaid
dividends thereon) or (3) a written notice to the Company that the
Purchaser is exercising the Warrant (or a portion thereof) by authorizing
the Company to withhold from issuance a number of shares of Common Stock
issuable upon such exercise of the Warrant which when multiplied by the
Market Value of the Common Stock is equal to the Aggregate Exercise Price
(and such withheld shares shall no longer be issuable under this Warrant).
(ii) Certificates for shares of Common Stock purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser within 5
business days after the date of the Exercise Time. Unless this Warrant has
expired or all of the purchase rights represented hereby have been exercised,
the Company shall prepare a new Warrant, substantially identical hereto,
representing the rights formerly represented by this Warrant which have not
expired or been exercised and shall, within such 5 business day period, deliver
such new Warrant to the person designated for delivery in the Exercise
Agreement.
(iii) The Common Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser at the Exercise Time, and
the Purchaser shall be deemed for all purposes to have become the record holder
of such Common Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Holder or the
Purchaser for any issuance tax in respect thereof or other cost incurred by the
Company in connection with such exercise and the related issuance of shares of
Common Stock. Each share of Common Stock issuable upon exercise of this Warrant
shall, upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens and charges with respect to the issuance
thereof.
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(v) The Company shall not close its books against the transfer of this
Warrant or of any share of Common Stock issued or issuable upon the exercise of
this Warrant in any manner which interferes with the timely exercise of this
Warrant.
(vi) The Company shall assist and cooperate with any Holder or
Purchaser required to make any governmental filings or obtain any governmental
approvals prior to or in connection with any exercise of this Warrant
(including, without limitation, making any filings required to be made by the
Company).
(vii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the exercise of the Warrants, such number of shares of Common
Stock issuable upon the exercise of all outstanding Warrants. All shares of
Common Stock which are so issuable shall, when issued, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges.
The Company shall take all such actions as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or governmental regulation or any requirements of any domestic securities
exchange upon which shares of Common Stock may be listed (except for official
notice of issuance which shall be immediately delivered by the Company upon each
such issuance). The Company shall not take any action which would cause the
number of authorized but unissued shares of Common Stock to be less than the
number of such shares required to be reserved hereunder for issuance upon
exercise of the Warrant.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in Exhibit I
hereto, except that if the shares of Common Stock are not to be issued in the
name of the person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the person to whom the certificates for
the shares of Common Stock are to be issued, and if the number of shares of
Common Stock to be issued does not include all the shares of Common Stock
purchasable hereunder, it shall also state the name of the person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be delivered.
Such Exercise Agreement shall be dated the actual date of execution thereof.
Section 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this Warrant, the Exercise
Price shall be subject to adjustment from time to time as provided in this
Section 2, and the number of shares of Common Stock obtainable upon exercise of
this Warrant shall be subject to adjustment from time to time as provided in
this Section 2.
2A. Adjustment of Exercise Price and Number of Shares upon Issuance
of Common Stock. If and whenever on or after the Date of Issuance of this
Warrant, the Company issues or sells, or in accordance with paragraph 2B is
deemed to have issued or sold, any share of Common Stock for a consideration per
share less than the Exercise Price in effect immediately prior to such time,
then immediately upon such issue or sale the Exercise Price shall be reduced to
the lowest net price per share at which such share of Common Stock has been
issued or sold or is deemed to have been issued or sold. Upon each such
adjustment of the Exercise Price hereunder, the number of shares of Common
acquirable upon exercise of this Warrant shall be adjusted to the
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number of shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common
acquirable upon exercise of this Warrant immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting from such
adjustment.
2B. Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under paragraph 2A, the following shall
be applicable:
(i) Issuance of Rights or Options. If the Company in any manner
grants or sells any Options and the lowest price per share for which any one
share of Common Stock is issuable upon the exercise of any such Option, or upon
conversion or exchange of any Convertible Security issuable upon exercise of
such Option, is less than the Exercise Price in effect immediately prior to the
time of the granting or sale of such Option, then such share of Common Stock
shall be deemed to have been issued and sold by the Company at such time for
such price per share. For purposes of this paragraph, the "lowest price per
share for which any one share of Common Stock is issuable" shall be equal to the
sum of the lowest amounts of consideration (if any) received or receivable by
the Company with respect to any one share of Common Stock upon the granting or
sale of the Option, upon exercise of the Option and upon conversion or exchange
of the Convertible Security. No further adjustment of the Exercise Price shall
be made upon the actual issue of such Common Stock or of such Convertible
Security upon the exercise of such Options or upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Security.
(ii) Issuance of Convertible Securities. If the Company in any manner
issues or sells any Convertible Security and the lowest price per share for
which any one share of Common Stock is issuable upon conversion or exchange
thereof is less than the Exercise Price in effect immediately prior to the time
of such issue or sale, then such share or shares of Common Stock shall be deemed
to have been issued and sold by the Company at such time for such price per
share. For the purposes of this paragraph, the "lowest price per share for which
any one share of Common Stock is issuable" shall be equal to the sum of the
lowest amounts of consideration (if any) received or receivable by the Company
with respect to any one share of Common Stock upon the issuance of the
Convertible Security and upon the conversion or exchange of such Convertible
Security. No further adjustment of the Exercise Price shall be made upon the
actual issue of such Common Stock upon conversion or exchange of any Convertible
Security, and if any such issue or sale of such Convertible Security is made
upon exercise of any Options for which adjustments of the Exercise Price had
been or are to be made pursuant to other provisions of this Section 2, no
further adjustment of the Exercise Price shall be made by reason of such issue
or sale.
(iii) Change in Option Price or Conversion Rate. If the purchase
price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock changes at any time, the Exercise Price in effect at the time
of such change shall be adjusted immediately to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold and the number of shares of Common Stock
issuable hereunder shall be correspondingly adjusted. For purposes of this
paragraph 2B, if the terms of any
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Option or Convertible Security which was outstanding as of the date of issuance
of this Warrant are changed in the manner described in the immediately preceding
sentence, then such Option or Convertible Security and the Common Stock deemed
issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such change; provided that no such change shall at
any time cause the Exercise Price hereunder to be increased.
(iv) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any right
to convert or exchange any Convertible Securities without the exercise of such
Option or right, the Exercise Price then in effect shall be adjusted immediately
to the Exercise Price which would have been in effect at the time of such
expiration or termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination, never
been issued. For purposes of this paragraph 2B, the expiration or termination
of any Option or Convertible Security which was outstanding as of the date of
issuance of this Warrant shall not cause the Exercise Price hereunder to be
adjusted unless, and only to the extent that, a change in the terms of such
Option or Convertible Security caused it to be deemed to have been issued after
the date of issuance of this Warrant.
(v) Calculation of Consideration Received. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor shall be deemed to
be the net amount received by the Company therefor. In case any Common Stock,
Options or Convertible Securities are issued or sold for a consideration other
than cash, the amount of the consideration other than cash received by the
Company shall be the fair value of such consideration, except where such
consideration consists of securities, in which case the amount of consideration
received by the Company shall be the Market Value thereof as of the date of
receipt. In case any Common Stock, Options or Convertible Securities are issued
to the owners of the non-surviving entity in connection with any merger in which
the Company is the surviving corporation, the amount of consideration therefor
shall be deemed to be the fair value of such portion of the net assets and
business of the non-surviving entity as is attributable to such Common Stock,
Options or Convertible Securities, as the case may be. The fair value of any
consideration other than cash or securities shall be determined jointly by the
Company and the Holders of Warrants representing a majority of the shares of
Common Stock obtainable upon exercise of such Warrants. If such parties are
unable to reach agreement within a reasonable period of time, such fair value
shall be determined by an appraiser jointly selected by the Company and the
Holders of Warrants representing a majority of the shares of Common Stock
obtainable upon exercise of such Warrants. The determination of such appraiser
shall be final and binding on the Company and the Holders of the Warrants, and
the fees and expenses of such appraiser shall be paid by the Company.
(vi) Integrated Transactions. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Options by the parties thereto, the Options shall be deemed to
have been issued without consideration.
(vii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the Company or any subsidiary, and the disposition of any shares
so owned or held shall be considered an issue or sale
5
of Common Stock.
(viii) Record Date. If the Company takes a record of the holders of
Common Stock for the purpose of entitling them (A) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
or (B) to subscribe for or purchase Common Stock, Options 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 of subscription or purchase, as the case may
be.
2C. Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Common
Stock obtainable upon exercise of this Warrant shall be proportion ately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Common Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2D. Reorganization, Reclassification, Consolidation, Merger or Sale.
Any recapitalization, reorganization, reclassification, consolidation, merger,
sale of all or substantially all of the Company's assets or other transaction,
in each case which is effected in such a way that the holders of Common Stock
are entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as an "Organic Change." Prior to the consummation of any Organic
Change, the Company shall make appropriate provision (in form and substance
reasonably satisfactory to the Holders of the Warrants representing a majority
of the Common Stock obtainable upon exercise of all Warrants then outstanding)
to insure that each of the Holders of the Warrants shall thereafter have the
right to acquire and receive, in lieu of or in addition to (as the case may be)
the shares of Common Stock immediately theretofore acquirable and receivable
upon the exercise of such Holder's Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of such ▇▇▇▇▇▇'s Warrant had such Organic Change not taken place. In
any such case, the Company shall make appropriate provision (in form and
substance reasonably satisfactory to the Holders of the Warrants representing a
majority of the Common Stock obtainable upon exercise of all Warrants then
outstanding) with respect to such Holders' rights and interests to insure that
the provisions of this Section 2 shall thereafter be applicable to the Warrants
(including, in the case of any such consolidation, merger or sale in which the
successor entity or purchasing entity is other than the Company, an immediate
adjustment of the Exercise Price, and a corresponding immediate adjustment in
the number of shares of Common Stock acquirable and receivable upon exercise of
the Warrants). The Company shall not effect any such consolidation, merger or
sale, unless prior to the consummation thereof, the successor entity (if other
than the Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument (in form and substance
satisfactory to the Holders of Warrants representing a majority of the Common
Stock
6
obtainable upon exercise of all of the Warrants then outstanding) the obligation
to deliver to each such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
acquire.
2E. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 2 but not expressly provided for by such
provisions then the Company's board of directors shall make an appropriate
adjustment in the Exercise Price and the number of shares of Common Stock
obtainable upon exercise of this Warrant so as to protect the rights of the
Holders of the Warrants; provided that no such adjustment shall increase the
Exercise Price or decrease the number of shares of Common Stock obtainable as
otherwise determined pursuant to this Section 2.
2F. Notices.
-------
(i) Immediately upon any adjustment of the Exercise Price, the Company
shall give written notice thereof to the Holder(s), setting forth in reasonable
detail and certifying the calculation of such adjustment.
(ii) The Company shall give written notice to the Holder(s) at least
20 days prior to the date on which the Company closes its books or takes a
record (A) with respect to any dividend or distribution upon the Common Stock,
(B) with respect to any pro rata subscription offer to holders of Common Stock
or (C) for determining rights to vote with respect to any Organic Change,
dissolution or liquidation.
(iii) The Company shall also give written notice to the Holder(s) at
least 20 days prior to the date on which any Organic Change, dissolution or
liquidation shall take place.
Section 3. Definitions. The following terms have meanings set
forth below:
"Convertible Securities" means any stock or securities (directly or
indirectly) convertible into or exchangeable for Common Stock.
"Market Value" means, as of the date in question, the officially-
quoted opening selling price of the Common Stock (or if no selling price is
quoted, the bid price) on the principal securities exchange on which the Common
Stock is then listed for trading (including for this purpose the Nasdaq National
Market) (the "Market") for the date in question or, if the Common Stock is not
then listed or quoted in the Market, the Market Value shall be the fair value of
the Common Stock determined in good faith by the Company's board of directors.
"Options" means any rights or options to subscribe for or
purchase Common Stock or Convertible Securities.
Section 4. Registration Rights. Any Common Stock (i) issued or
issuable to Madison Dearborn Capital Partners, L.P. ("MDP") or any of its
affiliates upon exercise of the
7
Warrant or upon exercise of any warrant issued pursuant to Section 5 hereof or
(ii) issued or issuable with respect to the Common Stock referred to in (i) by
way of a stock dividend, stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization shall be
deemed to be "Registrable Securities" for purposes of the Registration
Agreement, dated June 11, 1998, by and between MDP and ▇▇▇▇▇ Holdings, Inc., the
Company's predecessor.
Section 5. Issuance of Additional Warrants. If MDP is required to
make any payment pursuant to that certain Guaranty, dated as of November 22,
2000, by and among MDP, the Company, Bank of America, N.A. and the other lenders
party thereto (the "MDP Guaranty"), the Company shall issue to MDP, for no
additional consideration, a warrant to purchase an additional number of shares
of Common Stock equal to the amount of any such payment divided by the Market
Value of the Company's Common Stock at the time of such payment and the exercise
price of such warrant shall equal the Market Value of the Company's Common Stock
at the time of such payment. The warrant shall otherwise be in a form
substantially identical to this Warrant. In the event the issuance by the
Company of any additional warrants to MDP under this Section 5 would require the
approval of the Company' stockholders under the rules of the Market or any other
applicable regulatory or listing authority, the Company shall use its best
efforts to obtain any such approvals promptly and shall, in any event, issue to
MDP a warrant to purchase such number of shares as may be issued without
stockholder approval. Any warrants issued pursuant to this Section 5 shall be
considered to be a "Warrant" for purposes of any vote hereunder that requires
the consent of the Holders of Warrants representing a majority of the Common
Stock obtainable upon exercise of all Warrants then outstanding.
Section 6. No Voting Rights; Limitations of Liability. This Warrant
shall not entitle the Holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Holder to purchase Common Stock, and no enumeration herein of the
rights or privileges of the Holder shall give rise to any liability of such
Holder for the Exercise Price of Common Stock acquirable by exercise hereof or
as a stockholder of the Company.
Section 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Holder at the time
of such surrender. The date the Company initially issued this Warrant shall be
deemed to be the "Date of Issuance" hereof regardless of the number of times new
certificates representing the unexpired and unexercised rights formerly
represented by this Warrant shall be issued. All Warrants representing portions
of the rights hereunder are referred to herein as the "Warrants."
Section 8. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Holder shall be satisfactory)
of the ownership and the loss, theft, destruction or mutilation of any
certificate evidencing this Warrant, and in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or, in the case of any such mutilation upon surrender of such certificate, the
Company shall (at its expense) execute and deliver in lieu of such certificate a
new certificate of like kind representing the same rights
8
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
Section 9. Notices. Except as otherwise expressly provided herein,
all notices referred to in this Warrant shall be in writing and shall be
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid and shall be deemed to have been given when so
delivered or deposited in the U.S. Mail (i) to the Company, at its principal
executive offices and (ii) to the Holder of this Warrant, at such Holder's
address as it appears in the records of the Company (unless otherwise indicated
by such Holder).
Section 10. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrant(s) may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Holder(s) of the Warrants representing a majority of the Common Stock obtainable
upon exercise of all Warrants then outstanding.
Section 11. Descriptive Headings. The descriptive headings of the
several Sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant.
Section 12. Governing Law. All issues and questions concerning the
construc tion, validity, enforcement and interpretation of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
* * * *
9
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
▇▇▇▇▇ HORTICULTURE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
10
EXHIBIT I
▇▇▇▇▇ HORTICULTURE, INC.
WARRANT EXERCISE AGREEMENT
--------------------------
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-1) hereby agrees to subscribe for the purchase of
______ shares of the Common Stock covered by such Warrant and makes payment
herewith in full therefor at the price per share provided by such Warrant.
Signature ____________________
Address ______________________
EXHIBIT II
ASSIGNMENT
----------
FOR VALUE RECEIVED, _____________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-_____) with respect to the number of shares of the
Common Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
----------------- ------- -------------
Dated: Signature _______________________
_______________________
Witness _______________________
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