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Exhibit 10.2
WARRANT AGREEMENT
Dated as of May 3, 2001
between
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
and
WEIGHT WATCHERS INTERNATIONAL, INC.
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WARRANT AGREEMENT
TABLE OF CONTENTS
Page
Section 1. Defined Terms ................................................................... 1
1.1 Certain Definitions ...................................................... 1
1.2 Rules of Construction .................................................... 3
Section 2. Issuance, Form, Execution, Delivery and Registration of Warrant Certificates .... 4
2.1 Issuance of Warrants ..................................................... 4
2.2 Execution of Warrant Certificates ........................................ 4
2.3 Registration, Registration of Transfers and Exchanges .................... 4
2.4 Form of Warrant Certificates ............................................. 5
2.5 Restrictive Legends ...................................................... 5
2.6 Offices for Exercise, etc ................................................ 5
2.7 Cancellation ............................................................. 6
2.8 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant Certificates ....... 6
Section 3. Terms of Warrants; Exercise of Warrants ......................................... 6
3.1 Exercise Period .......................................................... 6
3.2 Manner of Exercise ....................................................... 7
3.3 Issuance of Warrant Shares ............................................... 7
3.4 Fractional Warrant Shares ................................................ 8
3.5 Sufficient Authorized Share Capital ...................................... 8
3.6 Payment of Taxes ......................................................... 8
Section 4. Adjustment of Exercise Price and Number of Warrant Shares Issuable .............. 8
4.1 Adjustments .............................................................. 8
4.2 Superseding Adjustment ................................................... 12
4.3 Minimum Adjustment ....................................................... 13
4.4 Notice of Adjustment ..................................................... 13
4.5 Notice of Certain Transactions ........................................... 13
4.6 Adjustment to Warrant Certificate ........................................ 14
4.7 Challenge to Good Faith Determination .................................... 14
4.8 Treasury Stock ........................................................... 14
Section 5. Holders' Rights and Obligations ................................................. 14
5.1 Registration Rights ...................................................... 14
5.2 Other Rights and Obligations ............................................. 14
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Section 6. Miscellaneous ................................................................... 14
6.1 Notices to the Company and WWI ........................................... 14
6.2 Amendments ............................................................... 15
6.3 Severability ............................................................. 15
6.4 Successors ............................................................... 15
6.5 Termination .............................................................. 15
6.6 Governing Law ............................................................ 16
6.7 Jurisdiction; Venue ...................................................... 16
6.8 Benefits of This Agreement ............................................... 16
6.9 Counterparts ............................................................. 16
6.10 Table of Contents ........................................................ 16
6.11 MUTUAL WAIVER OF JURY TRIAL .............................................. 16
Exhibits
EXHIBIT A - Form of Note
EXHIBIT B - Form of Warrant Certificate
- ii -
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WARRANT AGREEMENT, dated as of May 3, 2001 (the "Agreement"),
between ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), and
Weight Watchers International, Inc., a Virginia corporation ("WWI").
W I T N E S S E T H:
WHEREAS, WWI has agreed to amend and restate the loan (the
"Amended Loan") between the Company and WWI to permit the Company to borrow up
to an aggregate principal amount of $28.5 million pursuant to the terms of the
Note attached hereto as Exhibit A; and
WHEREAS, in order to induce WWI to enter into the Amended
Loan, the Company has agreed to enter into this Agreement and issue an
additional 444,444 Warrants to WWI.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, and for the purpose of defining the
respective rights and obligations of the Company and the Holders (as defined
below), the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
1.1 Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as
applied to any Person, is defined to mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Board" means the Board of Directors of the Company.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"Cashless Exercise" has the meaning specified in Section 3.2
hereof.
"Cashless Exercise Ratio" means a fraction, the numerator of
which is the excess of the Current Market Value (as defined below) per
share of Common Stock on the Exercise Date over the Exercise Price per
share as of the Exercise Date and the denominator of which is the
Current Market Value per share of Common Stock on the Exercise Date.
"Combination" has the meaning specified in Section 4.1(d)
hereof.
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"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Current Market Value," per share of Common Stock or any other
security at any date, means (i) if the security is not registered under
the Exchange Act, the fair market value of the security (without any
discount for lack of liquidity, the amount of such security offered to
be purchased or the fact that such securities may represent a minority
interest in a private company or a company under the control of another
Person) as determined in good faith by the Board and certified in a
board resolution that is delivered to the Holders, and, if requested by
the Majority Holders, determined to be fair, from a financial point of
view, to the holders of such security or another security exercisable
for such security, by an Independent Financial Expert (as set forth in
such Independent Financial Expert's written fairness opinion); or (ii)
if the security is registered under the Exchange Act, the average of
the last reported sale price of the security (or the equivalent in an
over-the-counter market) for each Business Day during the period
commencing 15 Business Days before such date and ending on the date one
day prior to such date, or if the security has been registered under
the Exchange Act for less than 15 consecutive Business Days before such
date, the average of the daily closing bid prices (or such equivalent)
for all of the Business Days before such date for which daily closing
bid prices are available (provided, however, that if the closing bid
price is not determinable for at least 10 Business Days in such period,
the "Current Market Value" of the security shall be determined as if
the security were not registered under the Exchange Act). The Company
shall pay the fees and expenses of any Independent Financial Expert in
the determination of Current Market Value.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended (or any successor act), and the rules and regulations
promulgated thereunder.
"Exercise Date" means the date on which a Warrant is exercised
by the Holder thereof.
"Exercise Price" means the purchase price per Warrant Share to
be paid upon the exercise of each Warrant, which price shall be $7.14
per Warrant Share as adjusted in accordance with the terms hereof.
"Expiration Date" means May 2, 2011.
"Holder" means the holder of a Warrant, which shall initially
be WWI.
"Independent Financial Expert" means a nationally recognized
investment bank that does not (and whose directors, executive officers
and 5% stockholders do not) have a direct or indirect financial
interest in the Company, the Holders, or any of their respective
subsidiaries or Affiliates, which has not been for at least five years,
and at the time it is called upon to give independent financial advice
to the Company is not (and none of its directors, executive officers or
5% stockholders is), a promoter, director, or officer of the Company,
the Holders or any of their respective subsidiaries or Affiliates. The
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Independent Financial Expert may be compensated and indemnified by the
Company for opinions or services it provides as an Independent
Financial Expert.
"Issue Date" means May 3, 2001, the date on which the Warrants
are first issued.
"Majority Holders" means the Holders of a majority of the then
outstanding Warrants.
"Officer" means the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Repurchase Price" means, in respect of a Warrant, (i) the
excess of the Current Market Value of a share of Common Stock of the
Company over the Exercise Price per share of Common Stock, multiplied
by (ii) the number of Warrant Shares that would be obtained if one
Warrant was exercised on the date of repurchase.
"Right" has the meaning specified in Section 4.1(g) hereof.
"Securities Act" means the Securities Act of 1933, as amended
(or any successor act), and the rules and regulations promulgated
thereunder.
"Successor Company" has the meaning specified in Section
4.1(d) hereof.
"Warrant Certificates" means the certificates evidencing the
Warrants to be delivered pursuant to this Agreement, substantially in
the form of Exhibit B hereto.
"Warrant Registrar" has the meaning specified in Section 2.3
hereof.
"Warrant Shares" has the meaning specified in Section 2.1
hereof.
"Warrants" shall mean the Warrants issued hereunder and all
warrants issued upon transfer, division or combination of, or in
substitution for, any thereof. All Warrants shall at all times be
identical as to terms and conditions and date, except as to the number
of shares of Common Stock for which they may be exercised.
1.2 Rules of Construction. Unless the text otherwise required.
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with United States generally
accepted accounting principles ("U.S. GAAP") as in effect from time to
time;
(iii) "or" is not exclusive;
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(iv) "including" means including, without limitation;
and
(v) words in the singular include the plural and
words in the plural include the singular.
SECTION 2. ISSUANCE, FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANT CERTIFICATES.
2.1 Issuance of Warrants. Each Warrant Certificate shall
evidence the number of Warrants specified therein, and each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase from the Company (and the Company shall issue and sell
to such holder of the Warrant) one share of Common Stock of the Company (the
shares purchasable upon exercise of a Warrant being hereinafter referred to as
the "Warrant Shares," subject to adjustment as provided in Section 4 hereof).
2.2 Execution of Warrant Certificates. The Warrant
Certificates shall be executed on behalf of the Company by one Officer of the
Company. Such signatures may be the manual or facsimile signatures of the
present or any future such Officers. Typographical and other minor errors or
defects in any such reproduction of any such signature shall not affect the
validity or enforceability of any Warrant Certificate.
In case any Officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such Officer before the Warrant
Certificate so signed shall be delivered by the Company, such Warrant
Certificate nevertheless may be delivered or disposed of as though the Person
who signed such Warrant Certificate had not ceased to be such Officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
such Persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper Officers of the Company, although at the date
of the execution and delivery of this Agreement any such Person was not such an
Officer.
2.3 Registration, Registration of Transfers and Exchanges. The
Company will keep, at the office or agency maintained by the Company for such
purpose, a register or registers in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of, and registration of transfer and exchange of, Warrants as provided herein.
Each person designated by the Company from time to time as a Person authorized
to register the transfer and exchange of the Warrants is hereinafter called,
individually and collectively, the "Warrant Registrar." The Company hereby
initially appoints itself as Warrant Registrar. Upon written notice to the
Holders and any acting Warrant Registrar, the Company may appoint a successor
Warrant Registrar for such purposes.
The Company will at all times designate one Person (who may be
the Company and who need not be a Warrant Registrar) to act as repository of a
master list of names and addresses of the holders of Warrants (the "Warrant
Register"). The Company will act as such repository unless and until some other
Person is, by written notice from the Company to the Holders and the Warrant
Registrar, designated by the Company to act as such. In the event the Warrant
Registrar is not the repository, the Company shall cause the Warrant Registrar
to furnish to such repository, on a current basis, such information as to all
registrations of transfer and
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exchanges effected by the Warrant Registrar, as may be necessary to enable such
repository to maintain the Warrant Register on as current a basis as is
practicable.
When Warrants are presented to the Company with a request to
register the transfer of the Warrants or exchange Warrants for an equal number
of Warrants of other authorized denominations, the Company shall register the
transfer or make the exchange as requested if the requirements under this
Warrant Agreement as set forth herein for such transactions are met; provided,
however, that the Warrants presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Company, duly executed by the holder
thereof or by his attorney, duly authorized in writing.
All Warrants issued upon any registration of transfer or
exchange of Warrants shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement, as
the Warrants surrendered upon such registration of transfer or exchange.
2.4 Form of Warrant Certificates. The Warrant Certificates to
be delivered pursuant to this Agreement shall be substantially in the form set
forth in Exhibit B attached hereto. Such Warrant Certificates shall represent
such of the outstanding Warrants as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Warrants
from time to time endorsed thereon and that the aggregate amount of outstanding
Warrants represented thereby may from time to time be decreased or increased, as
appropriate. Any endorsement of a Warrant Certificate to reflect the amount of
any increase or decrease in the amount of outstanding Warrants represented
thereby shall be made by the Company in accordance with instructions given by
the holder thereof.
2.5 Restrictive Legends. The Warrant Certificates shall bear
the following legend (the "Private Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.
2.6 Offices for Exercise, etc. So long as any of the Warrants
remain outstanding, the Company will designate: (a) an office or agency where
the Warrant Certificates may be presented for exercise, (b) an office or agency
where the Warrant Certificates may be presented for registration of transfer and
for exchange, and (c) an office or agency where notices and demands to or upon
the Company in respect of the Warrants or of this Agreement may be served. The
Company may from time to time change such designation, as it may deem desirable
or expedient. The Company will give to the Holders and the Warrant Registrar
written notice of the location of any such office or agency and of any change of
location thereof. The Company
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hereby designates its office at the address set forth in Section 6.1, as the
initial agency maintained for such purpose.
2.7 Cancellation. All Warrant Certificates surrendered for the
purpose of exercise (in whole or in part), exchange, substitution or transfer
shall, if surrendered to the Company or to any of its agents, be delivered to
the Company for cancellation or in cancelled form, or if surrendered to the
Company shall be cancelled by it, and no Warrant Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. If the Company purchases or acquires Warrants and if the Company so
chooses, the Company may cancel and retire the Warrant Certificates evidencing
said Warrants.
2.8 Lost, Stolen, Destroyed, Defaced or Mutilated Warrant
Certificates. Upon receipt by the Company (or any agent of the Company if
requested by the Company) of evidence satisfactory to it of the loss, theft,
destruction, defacement or mutilation of any Warrant Certificate and of
indemnity satisfactory to it (which may include posting a bond) and, in the case
of mutilation or defacement, upon surrender thereof to the Company for
cancellation, then, in the absence of notice to the Company that such Warrant
Certificate has been acquired by a bona fide purchaser or holder in due course,
the Company shall execute in exchange for or in lieu of the lost, stolen,
destroyed, defaced or mutilated Warrant Certificate, a new Warrant Certificate
representing a like number of Warrants, bearing a number or other distinguishing
symbol not contemporaneously outstanding. Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment from the
holder of such Warrant Certificate of a sum sufficient to cover any tax, stamp
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant Registrar) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section 2.8 are exclusive with respect to the replacement of lost, stolen,
destroyed, defaced or mutilated Warrant Certificates and shall preclude (to the
extent lawful) any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates.
SECTION 3. TERMS OF WARRANTS; EXERCISE OF WARRANTS.
3.1 Exercise Period. Subject to the terms of this Agreement,
each Holder shall have the right until 5:00 p.m., New York City time, on the
Expiration Date to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the Holder may at the time be entitled to
receive on exercise of such Warrants and payment of the Exercise Price then in
effect for such Warrant Shares. Each Warrant not exercised prior to 5:00 p.m.,
New York City time, on the Expiration Date shall become void and all rights
thereunder and all rights in respect thereof under this Agreement shall cease as
of such time.
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The Company shall give notice not less than 90, and not more
than 120, days prior to the Expiration Date to the Holders of the outstanding
Warrants to the effect that the Warrants will terminate and become void as of
5:00 p.m., New York City time, on the Expiration Date; provided, however, that
the failure by the Company to give such notice as provided in this Section shall
not affect such termination and becoming void of the Warrants as of 5:00 p.m.,
New York City time, on the Expiration Date.
3.2 Manner of Exercise. A Warrant may be exercised at any time
prior to the Expiration Date upon (i) surrender to the Company of the Warrant
Certificates, together with the form of election to purchase properly completed
and executed by the Holder thereof and (ii) payment to the Company of the
Exercise Price for each share of Common Stock or other securities issuable upon
exercise of such Warrants. The Exercise Price may be paid (i) in cash or by
certified or official bank check or by wire transfer to an account designated by
the Company for such purpose (a "Cash Exercise") or (ii) without the payment of
cash, by reducing the number of shares of Common Stock that would be obtainable
upon the exercise of a Warrant and payment of the Exercise Price in cash so as
to yield a number of shares of Common Stock upon the exercise of such Warrant
equal to the product of (a) the number of shares of Common Stock for which such
Warrant is exercisable as of the date of exercise (if the Exercise Price were
being paid in cash) and (b) the Cashless Exercise Ratio. An exercise of a
Warrant in accordance with clause (ii) of the immediately preceding sentence is
herein called a "Cashless Exercise." In the event of a Cashless Exercise of
Warrants, the Company will purchase from the Holder thereof such number of
Warrants as would have entitled the Holder thereof to receive the excess of the
number of shares of Common Stock deliverable upon a Cash Exercise over the
number of shares of Common Stock deliverable upon a Cashless Exercise, for a
purchase price equal to the Exercise Price multiplied by the excess of the
number of shares of Common Stock purchasable upon a Cash Exercise over the
number of shares of Common Stock purchasable upon a Cashless Exercise. The
Company agrees to offset the purchase price referred to in the immediately
preceding sentence with the obligation to pay the Exercise Price in respect of
the shares of Common Stock deliverable upon a Cashless Exercise. Upon surrender
of a Warrant Certificate representing more than one Warrant in connection with
the holder's option to elect a Cashless Exercise, the number of shares of Common
Stock deliverable upon a Cashless Exercise shall be equal to the number of
shares of Common Stock issuable upon the exercise of Warrants that the Holder
specifies are to be exercised pursuant to a Cashless Exercise multiplied by the
Cashless Exercise Ratio. All provisions of this Agreement shall be applicable
with respect to a surrender of a Warrant Certificate pursuant to a Cashless
Exercise for less than the full number of Warrants represented thereby. Upon
surrender of the Warrant Certificate and payment of the Exercise Price in
accordance with this Agreement, the Company will issue shares of Common Stock of
the Company for each Warrant evidenced by such Warrant Certificate, subject to
adjustment as described herein. Whenever there occurs a Cashless Exercise, the
Company shall deliver to the Holder a certificate setting forth the Cashless
Exercise Ratio.
3.3 Issuance of Warrant Shares. Subject to Section 2.8, upon
the surrender of Warrant Certificates and payment of the Exercise Price, as set
forth above, the Company shall issue shares of Common Stock in such name or
names as the Holder may designate, for the number of full Warrant Shares so
purchased upon the exercise of such Warrants or other securities or property to
which it is entitled, registered or otherwise to the Person or Persons entitled
to receive the same, together with cash as provided in Section 3.4 in respect of
any
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fractional Warrant Shares otherwise issuable upon such exercise. Such shares of
Common Stock shall be deemed to have been issued and any Person so designated
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrant Certificates and payment of the per
share Exercise Price or upon a Cashless Exercise.
The Company hereby agrees that no service charge will be made
for registration of transfer or exchange upon surrender of any Warrant
Certificate at the office maintained for that purpose. Holders may be required
to make payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration or transfer or
exchange of Warrant Certificates.
3.4 Fractional Warrant Shares. The Company shall not be
required to issue fractional Warrant Shares on the exercise of Warrants. If more
than one Warrant shall be exercised in full at the same time by the same Holder,
the number of full Warrant Shares which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable pursuant thereto. If any fraction of a Warrant Share would, except
for the provisions of this Section 3.4, be issuable on the exercise of any
Warrant (or specified portion thereof), the Company may, at its option, pay an
amount in cash equal to the Current Market Value for one Warrant Share on the
Business Day immediately preceding the date the Warrant is exercised, multiplied
by such fraction.
3.5 Sufficient Authorized Share Capital. The Company has and
will maintain an authorized share capital sufficient for the issuance of such
number of shares of Common Stock as will be issuable upon the exercise of all
outstanding Warrants. Such shares of Common Stock, when issued and paid for in
accordance with the Warrant Agreement, will be duly and validly issued, fully
paid and nonassessable, free of preemptive rights and free from all liens,
charges and security interests with respect to the issue thereof.
3.6 Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of the Warrants and the Warrant
Shares issuable upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant Certificates or
Warrant Shares in a name other than that of the Holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 4. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES ISSUABLE.
4.1 Adjustments. The Exercise Price and the number of Warrant
Shares purchasable upon the exercise of Warrants shall be subject to adjustment
from time to time as follows:
(a) Changes in Shares of Common Stock. In the event that at
any time or from time to time after the date hereof the Company shall (i) pay a
dividend or make a distribution on
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its shares of Common Stock in shares of Common Stock or other shares of capital
stock, (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or (iv) increase or
decrease the number of shares of Common Stock outstanding by reclassification of
its shares of Common Stock, then the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately after the happening of
such event shall be adjusted (including by adjusting the definition of "Warrant
Shares") so that, after giving effect to such adjustment, the Holder of each
Warrant shall be entitled to receive the number of shares of Common Stock upon
exercise that such Holder would have owned or have been entitled to receive had
such Warrants been exercised immediately prior to the happening of the events
described above (or, in the case of a dividend or distribution of shares of
Common Stock, immediately prior to the record date therefor). An adjustment made
pursuant to this Section 4.1(a) shall become effective immediately after the
effective date, retroactive to the record date therefor in the case of a
dividend or distribution in shares of Common Stock, and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification.
(b) Cash Dividends and Other Distributions. In case at any
time or from time to time after the date hereof the Company shall distribute to
holders of shares of Common Stock (i) any dividend or other distribution of
cash, evidences of its indebtedness, shares of its capital stock or any other
properties or securities or (ii) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than, in each case set
forth in (i) and (ii), (x) any dividend or distribution described in Section
4.1(a) or (y) any rights, options, warrants or securities described in Section
4.1(c)) then the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be increased to a number determined by multiplying the number of
shares of Common Stock issuable immediately prior to the record date upon
exercise of each Warrant by a fraction, the numerator of which shall be the sum
of (x) any cash distributed per Warrant Share and (y) the Current Market Value
of the portion, if any, of the distribution applicable to one Warrant Share
consisting of evidences of indebtedness, shares of stock, securities, other
property, warrants, options or subscription of purchase rights and the
denominator of which shall be the Current Market Value of the shares of Common
Stock comprising one Warrant Share immediately after such dividend or other
distribution. Such adjustment shall be made whenever any distribution is made
and shall become effective as of the date of distribution, retroactive to the
record date for any such distribution; provided, however, that the Company is
not required to make an adjustment pursuant to this Section 4.1(b) if at the
time of such distribution the Company makes the same distribution to Holders of
Warrants as it makes to holders of shares of Common Stock pro rata based on the
number of shares of Common Stock for which such Warrants are exercisable
(whether or not currently exercisable). No adjustment shall be made pursuant to
this Section 4.1(b) which shall have the effect of decreasing the number of
Warrant Shares purchasable upon exercise of each Warrant.
(c) Rights Issue. In the event that at any time or from time
to time after the date hereof the Company shall issue, sell, distribute or
otherwise grant any rights to subscribe for or to purchase, or any options or
warrants for the purchase of, or any securities convertible or exchangeable
into, shares of Common Stock to all holders of shares of Common Stock, entitling
such holders to subscribe for or purchase shares of Common Stock or stock or
securities convertible into shares of Common Stock within 60 days after the
record date for such issuance,
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sale, distribution or other grant, as the case may be, and the sum of (a) the
offering price of such right, option, warrant or other security (on a per share
basis) and (b) any subscription, purchase, conversion or exchange price per
share of Common Stock (the "Consideration") is lower at the record date for such
issuance than the then Current Market Value per share of such Common Stock, the
number of shares of Common Stock thereafter purchasable shall be increased to a
number determined by multiplying the number of shares of Common Stock issuable
immediately prior to the record date upon exercise of each Warrant by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options, warrants or
securities plus the number of additional shares of Common Stock offered for
subscription or purchase or into or for which such securities are convertible or
exchangeable, and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights, options,
warrants or securities plus the total number of shares of Common Stock which
could be purchased at the Current Market Value with the aggregate of the
Consideration with respect to such issuance, sale, distribution or other grant.
Such adjustment shall be made whenever such rights, options or warrants are
issued and shall become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive such rights,
options, warrants or securities; provided however, that the Company is not
required to make an adjustment pursuant to this Section 4.1(c) if the Company
shall make the same distribution to Holders of Warrants. No adjustment shall be
made pursuant to this Section 4.1(c) which shall have the effect of decreasing
the number of Warrant Shares purchasable upon exercise of each Warrant.
If the Company at any time shall issue two or more securities
as a unit and one or more of such securities shall be rights, options or
warrants for or securities convertible or exchangeable into, shares of Common
Stock subject to this Section 4.1(c), the consideration allocated to each such
security shall be determined in good faith by the Board.
(d) Combination; Liquidation. (i) Except as provided in clause
(ii) below, in the event of certain consolidations, mergers or demergers of the
Company, or the sale of all or substantially all of the assets of the Company to
another Person (a "Combination"), each Warrant will thereafter be exercisable
for the right to receive the kind and amount of shares of stock or other
securities or property to which such holder would have been entitled as a result
of such Combination had the Warrants been exercised immediately prior thereto.
Unless clause (ii) is applicable to a Combination, if any Warrants shall be
outstanding after a Combination, the Company shall provide that the surviving or
acquiring Person (the "Successor Company") in such Combination will enter into
an agreement with the Holders confirming the Holders' rights pursuant to this
Section 4.1(d) and providing for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
4. The provisions of this Section 4.1(d) shall similarly apply to successive
Combinations involving any Successor Company.
(ii) In the event of (A) a Combination, and, in connection
therewith, the consideration payable to the holders of shares of Common Stock in
exchange for their shares is payable solely in cash or (B) a dissolution,
liquidation or winding-up of the Company, then the holders of the Warrants will
be entitled to receive distributions on an equal basis with the holders of
shares of Common Stock or other securities issuable upon exercise of the
Warrants, as if the Warrants had been exercised immediately prior to such event,
less the Exercise Price. Upon
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receipt of such payment, if any, the Warrants will expire and the rights of
holders thereof will cease.
(iii) In the case of any such Combination, the surviving or
acquiring Person as described in this Section 4.1(d) and, in the event of any
dissolution, liquidation or winding-up of the Company, the Company, shall
promptly pay to the Holders of the Warrants the amounts to which they are
entitled as described above upon surrender of the Warrant Certificates. The
Company shall make payment to the Holders by delivering a check, or by wire
transfer of same-day funds, in such amount as is appropriate (or, in the case of
consideration other than cash, such other consideration as is appropriate) to
such Person or Persons as it may be directed in writing by the Holders
surrendering such Warrants.
(e) Tender Offers; Exchange Offers. In the event that the
Company or any subsidiary of the Company shall purchase shares of Common Stock
pursuant to a tender offer or an exchange offer for a price per share of Common
Stock that is greater than the then Current Market Value per share of Common
Stock in effect at the end of the trading day immediately following the day on
which such tender offer or exchange offer expires, then the Company, or such
subsidiary of the Company, shall, within 10 Business Days of the expiry of such
tender offer or exchange offer, offer to purchase Warrants for comparable
consideration per share of Common Stock based on the number of shares of Common
Stock which the Holders of such Warrants would receive upon exercise of such
Warrants (the "Offer") (such amount less the Exercise Price in respect of such
share, the "Per Share Consideration"); provided, however, if a tender offer is
made for only a portion of the outstanding shares of Common Stock, then such
offer shall be made for such shares of Common Stock issuable upon exercise of
the Warrants in the same pro rata proportion.
The Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase such Warrants for the applicable Per Share
Consideration.
(f) Other Events. If any event occurs as to which the
foregoing provisions of this Section 4 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board, fairly
and adequately protect the purchase rights of the Warrants in accordance with
the essential intent and principles of such provisions, then the Board shall
make such adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary, in the
good faith opinion of the Board, to protect such purchase rights as aforesaid.
(g) When No Adjustment Required. Without limiting any other
exception contained in this Section 4.1, and in addition thereto, no adjustment
need be made for:
(i) (A) grants to, exercises of Rights by, or
issuances of equity securities to employees, directors, consultants or
advisors of the Company or any of its subsidiaries and (B) exercises of
Rights by, or issuances of equity securities in connection with Rights
previously issued to former employees, former directors, former
consultants (to the extent
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that all such securities, other than those permitted by clause (ii)
below, do not have an aggregate value in excess of 15% of the equity
value of the Company on a fully diluted basis, as determined in good
faith by the Board). As used herein, "Right" shall mean any right,
option, warrant or convertible or exchangeable security containing the
right to subscribe for or acquire one or more shares of Common Stock,
excluding the Warrants;
(ii) options, warrants or other agreements or rights
to purchase capital stock of the Company entered into or granted prior
to the date of the issuance of the Warrants or any issuance of capital
stock pursuant thereto or in connection therewith;
(iii) bona fide public offerings or private
placements;
(iv) rights to purchase shares of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest;
and
(v) a change in the par value of shares of Common
Stock (including a change from par value to no par value or vice
versa).
(h) Adjustment of Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of each Warrant is
adjusted, as provided under this Section 4, the Exercise Price per share of
Common Stock payable upon exercise of such Warrant shall be adjusted (calculated
to the nearest $0.01) so that it shall equal the price determined by multiplying
such Exercise Price immediately prior to such adjustment by a fraction the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise of each Warrant immediately prior to such adjustment and the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter. Following any adjustment to the Exercise
Price pursuant to this Section 4, the amount payable, when adjusted, shall never
be less than the par value per share of Common Stock at the time of such
adjustment.
If after an adjustment, a Holder of a Warrant upon exercise of
it may receive shares of two or more classes of capital stock of the Company,
the Company shall determine the allocation of the adjusted Exercise Price
between such classes of shares in a manner that the Board deems fair and
equitable to the Holders. After such allocation, the exercise privilege and the
Exercise Price of each class of shares shall thereafter be subject to adjustment
on terms comparable to those applicable to shares of Common Stock under this
Section 4.
Such adjustment shall be made successively whenever any event
listed above shall occur.
4.2 Superseding Adjustment. Upon the expiration of any rights,
options, warrants or conversion or exchange privileges which resulted in the
adjustments pursuant to this Section 4, if any thereof shall not have been
exercised, the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be readjusted as if (A) the only shares of Common Stock issuable
upon exercise of such rights, options, warrants, conversion or exchange
privileges were the shares of Common Stock, if any, actually issued upon the
exercise of such rights, options, warrants or conversion or exchange privileges
and (B) shares of Common Stock actually issued, if any, were issuable for the
consideration actually received by the Company
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upon such exercise plus the aggregate consideration, if any, actually received
by the Company for the issuance, sale or grant of all such rights, options,
warrants or conversion or exchange privileges whether or not exercised;
provided, however, that no such readjustment shall (except by reason of an
intervening adjustment under Section 4.1(a)) have the effect of decreasing the
number of Warrant Shares purchasable upon the exercise of each Warrant by an
amount in excess of the amount of the adjustment initially made in respect of
the issuance, sale or grant of such rights, options, warrants or conversion or
exchange privileges.
4.3 Minimum Adjustment. The adjustments required by the
preceding Sections of this Section 4 shall be made whenever and as often as any
specified event requiring an adjustment shall occur, except that no adjustment
of the number of shares of Common Stock purchasable upon exercise of Warrants
that would otherwise be required shall be made (except in the case of a
subdivision or combination of shares of Common Stock, as provided for in Section
4.1(a)) unless and until such adjustment either by itself or with other
adjustments not previously made increases or decreases by at least 1% of the
number of shares of Common Stock purchasable upon exercise of Warrants
immediately prior to the making of such adjustment. Any adjustment representing
a change of less than such minimum amount shall be carried forward and made as
soon as such adjustment, together with other adjustments required by this
Section 4 and not previously made, would result in a minimum adjustment. For the
purpose of any adjustment, any specified event shall be deemed to have occurred
at the close of business on the date of its occurrence. In computing adjustments
under this Section 4, fractional interests in shares of Common Stock shall be
taken into account to the nearest one-hundredth of a share.
4.4 Notice of Adjustment. Whenever the number of shares of
Common Stock and other property, if any, purchasable upon exercise of Warrants
is adjusted, as herein provided, the Company shall deliver to the Holders a
certificate setting forth, in reasonable detail, the event requiring the
adjustment and the method by which such adjustment was calculated (including a
description of the basis on which the Board determined the fair market value of
any evidences of indebtedness, other securities or property or warrants or other
subscription or purchase rights), and specifying the number of shares of Common
Stock purchasable upon exercise of Warrants after giving effect to such
adjustment. The Company shall promptly deliver a copy of such certificate to
each Holder.
4.5 Notice of Certain Transactions. In the event that the
Company shall propose (a) to pay any dividend payable in securities of any class
to the holders of its shares of Common Stock or to make any other distribution
to the holders of its shares of Common Stock, (b) to offer the holders of its
shares of Common Stock rights to subscribe for or to purchase any securities
convertible into shares of Common Stock or shares of Common Stock or shares of
stock of any class or any other securities, rights or options, (c) to effect any
reclassification of its shares of Common Stock, capital reorganization or
Combination or (d) to effect the voluntary or involuntary dissolution,
liquidation or winding-up of the Company, or in the event of a tender offer or
exchange offer described in Section 4.1(e), the Company shall within 5 Business
Days of making such proposal, tender offer or exchange offer send to the Holders
a notice of such proposed action or offer, such notice to be mailed by the
Company to the Holders at their addresses as they appear in the Warrant
Register, which shall specify the record date for the purposes of such dividend,
distribution or rights, or the date such issuance or event is to take place and
the date of participation therein by the holders of shares of Common Stock, if
any such
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date is to be fixed, and shall briefly indicate the effect of such action on the
shares of Common Stock and on the number and kind of any other shares of stock
and on other property, if any, and the number of shares of Common Stock and
other property, if any, purchasable upon exercise of each Warrant after giving
effect to any adjustment which will be required as a result of such action. Such
notice shall be given by the Company as promptly as possible and, in the case of
any action covered by clause (a) or (b) above, at least 10 Business Days prior
to the record date for determining holders of the shares of Common Stock for
purposes of such action and, in the case of any other such action, at least 20
Business Days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of shares of Common Stock,
whichever shall be the earlier.
4.6 Adjustment to Warrant Certificate. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Section 4, and Warrant Certificates issued after such adjustment may state the
same Exercise Price and the same number of shares of Common Stock as are stated
in any Warrant Certificates issued prior to the adjustment. The Company,
however, may at any time in its sole discretion make any change in the form of
Warrant Certificate that it may deem appropriate to give effect to such
adjustments and that does not affect the substance of the Warrant Certificate,
and any Warrant Certificate thereafter issued, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
4.7 Challenge to Good Faith Determination. Whenever the Board
shall be required to make a determination in good faith of the Current Market
Value of any item under Section 4, such determination may be challenged in good
faith by the Majority Holders.
4.8 Treasury Stock. The sale or other disposition of any
issued shares of Common Stock owned or held by or for the account of the Company
shall be deemed an issuance thereof and a repurchase thereof and designation of
such shares as treasury stock shall be deemed to be a redemption thereof for the
purposes of this Agreement.
SECTION 5. HOLDERS' RIGHTS AND OBLIGATIONS.
5.1 Registration Rights. The parties hereby agree and
acknowledge that the Holders will have registration rights with respect to
Warrant Shares in accordance with the provisions of the Registration Rights
Agreement, dated as of September 29, 1999, among the Company, WWI, ▇.▇. ▇▇▇▇▇
Company ("Heinz") and Artal Luxembourg S.A. ("Artal").
5.2 Other Rights and Obligations. The parties hereby agree
that the Warrants shall have the rights and be subject to the obligations set
forth in the Stockholders' Agreement, dated as of September 29, 1999 (the
"Stockholders' Agreement"), among the Company, WWI, Heinz and Artal with respect
to shares of Common Stock held by WWI. The parties hereby agree and acknowledge
that the Warrant Shares shall accordingly be subject to the provisions of the
Stockholders' Agreement.
SECTION 6. MISCELLANEOUS.
6.1 Notices to the Company and WWI. Any notice or demand
authorized by this Agreement to be given or made by the Holder of any Warrant
Certificate to or on the
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Company shall be sufficiently given or made (i) five business days after
deposited in the mail, first class or registered, postage prepaid, (ii) one
business day after being timely delivered to a next-day air courier or (ii) when
receipt is acknowledged by the addressee, if telecopied, addressed (until
another addresses is filed in writing by the Company with the Holders), as
follows:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice pursuant to this Agreement to be given by the
Company to any Holder shall be sufficiently given or made (i) five business days
after deposited in the mail, first-class or registered, postage prepaid, (ii)
one business day after being timely delivered to a next-day air courier or (ii)
when receipt is acknowledged by the addressee, if telecopied, addressed (until
another or additional address is filed in writing by a Holder with the Company)
to the Holder as follows:
Weight Watchers International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
6.2 Amendments. Except as set forth herein, the provisions of
this Agreement may only be amended or waived with the prior written consent of
the Company and each Holder; provided that the Company and the Majority Holders
may amend or waive this Agreement except to the extent such waiver or amendment
would constitute an adverse amendment or waiver to a non-consenting Holder's
rights hereunder in a material respect.
6.3 Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
6.4 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Holders shall bind and
inure to the benefit of their respective permitted successors and assigns
hereunder.
6.5 Termination. This Agreement (other than the Company's
obligations with respect to Warrants previously exercised and the Company's and
the Holders' rights and obligations set forth in Sections 5.1 and 5.2) shall
terminate at 5:00 p.m., New York City time on the Expiration Date.
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6.6 Governing Law. This Warrant Agreement and the Warrants
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
6.7 Jurisdiction; Venue. The parties to this Agreement agree
that jurisdiction and venue in any action brought by any party hereto pursuant
to this Agreement shall properly lie and shall be brought in any federal or
state court located in the State of New York. By execution and delivery of this
Agreement, each party hereto irrevocably submits to the jurisdiction of such
courts for itself or himself and in respect of its or his property with respect
to such action. The parties hereto irrevocably agree that venue would be proper
in such court, and hereby irrevocably waive any objection that such court is an
improper or inconvenient forum for the resolution of such action.
6.8 Benefits of This Agreement. (a) Nothing in this Agreement
shall be construed to give to any Person other than the Company and the Holders
of any legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company and the
Holders.
(b) Prior to the exercise of the Warrants, no Holder of a
Warrant Certificate, as such, shall be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company, to share in the assets of the Company in the event of
the liquidation, dissolution or winding up of the Company's affairs or any other
matter or to receive any notice of any proceedings of the Company, except as may
be specifically provided for herein.
6.9 Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
6.10 Table of Contents. The table of contents and headings of
the Sections of this Agreement have been inserted for convenience of reference
only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
6.11 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
WEIGHT WATCHERS INTERNATIONAL, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
21
EXHIBIT A
[Form of Amended and Restated Note]
22
EXHIBIT B
[Form of Warrant Certificate]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
No. 03 444,444 Warrants
WARRANT CERTIFICATE
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
THIS CERTIFIES THAT, Weight Watchers International, Inc., a Virginia
corporation ("WWI"), is the owner of 444,444 Warrants (the "Warrants") as
described above, transferable only on the books of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation (the "Company"), by the holder thereof in person or by his
or her duly authorized attorney, on surrender of the Certificate properly
endorsed. Each Warrant entitles the holder thereof (the "Holder"), at its option
and subject to the provisions contained herein and in the Warrant Agreement,
dated as of May 3, 2001 (the "Warrant Agreement"), between the Company and WWI,
to purchase from the Company, one Warrant Share per Warrant at the exercise
price per share of $ 7.14 (the "Exercise Price"), or by Cashless Exercise. This
Warrant is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is hereby
made to the Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties and obligations of the Company and the Holders of
the Warrants. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Warrant Agreement. This Warrant Certificate
shall terminate and become void as of 5:00 p.m. on May 2, 2011 (the "Expiration
Date") or upon the exercise hereof as to all the shares of Common Stock subject
hereto. The Exercise Price and the number of Warrant Shares purchasable upon
exercise of the Warrants shall be subject to adjustment from time to time as set
forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be executed on behalf of the Company on the date set forth below.
Dated: May 3, 2001
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
23
[FORM OF REVERSE OF WARRANT CERTIFICATE]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement. A copy of the Warrant Agreement may be obtained for
inspection by the Holder hereof upon written request to the Company, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Warrants may be exercised at any time until 5:00 p.m., New York City
time on the Expiration Date. Subject to the terms of the Warrant Agreement, the
Warrants may be exercised in whole or in part by surrender of this Warrant
Certificate with the form of election to purchase Warrant Shares attached hereto
duly executed and with the simultaneous payment of the Exercise Price (i) in
cash to the Company at the office of the Company or (ii) by Cashless Exercise.
Payment of the Exercise Price in cash shall be made in cash or by certified or
official bank check payable to the order of the Company or by wire transfer of
same-day funds to an account designated by the Company for such purpose. Payment
by Cashless Exercise shall be made by the surrender of a Warrant or Warrants
represented by one or more Warrant Certificates and without payment of the
Exercise Price in cash, in exchange for the issuance of such number of shares of
Common Stock equal to the product of (1) the number of shares of Common Stock
for which such Warrants would otherwise then be nominally exercised if payment
of the Exercise Price were being made in cash and (2) the Cashless Exercise
Ratio.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of each
Warrant shall, subject to certain conditions, be adjusted.
In the event the Company enters into a Combination following which
this Warrant remains outstanding, the Holder hereof will be entitled to receive
upon exercise of the Warrants the shares of capital stock or other securities or
other property of such surviving entity as such Holder would have been entitled
to receive upon or as the result of such Combination had the Holder exercised
its Warrants immediately prior to such Combination; provided, however, that in
the event that, in connection with such Combination, consideration to holders of
shares of Common Stock in exchange for their shares is payable solely in cash or
in the event of the dissolution, liquidation or winding-up of the Company, the
Holder hereof will be entitled to receive distributions on an equal basis with
the holders of shares of Common Stock or other securities issuable upon exercise
of the Warrants, as if the Warrants had been exercised immediately prior to such
events, less the Exercise Price.
The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with the transfer
or exchange of the Warrant Certificates pursuant to Section 3.6 of the Warrant
Agreement but not for any exchange or original issuance (not involving a
transfer) with respect to the exercise of the Warrants or the Warrant Shares.
Upon any partial exercise of the Warrants, there shall be issued to
the Holder hereof a new Warrant Certificate in respect of the Warrant Shares as
to which the Warrants shall not have been exercised. This Warrant Certificate
may be exchanged at the office of the Company by presenting this Warrant
Certificate properly endorsed with a request to exchange this Warrant
Certificate for other Warrant Certificates evidencing an equal number of
Warrants. In the event any fractional Warrant Shares would have to be issued
upon the exercise of the Warrants, the Company may, at its option, pay an amount
in cash equal to the Current Market Value for one Warrant Share on the Business
Day immediately preceding the date the Warrant is exercised, multiplied by such
fraction, in lieu of issuing such fractional share.
The Warrants do not entitle any holder hereof to any of the rights
of a stockholder of the Company. All shares of Common Stock issuable by the
Company upon the exercise of the Warrants shall, upon such issue, be duly and
validly issued and fully paid and non-assessable.
The Holder of this Warrant Certificate may be deemed and treated by
the Company as the absolute owner of the Warrant Certificate for all purposes
whatsoever and the Company shall not be affected by notice to the contrary.
24
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
[ ]
The undersigned hereby irrevocably elects to exercise ____________
Warrants at an exercise price per Warrant Share of $________ to acquire an equal
number of Warrant Shares on the terms and conditions specified in the within
Warrant Certificate and the Warrant Agreement therein referred to, surrenders
this Warrant Certificate and all right, title and interest therein to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., and directs that the shares of Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date: ________________, ____
_______________________________(1)
(Signature of Owner)
_______________________________
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
_______________________________
(City) (State) (Zip Code)
________
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
25
2
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
-------------------------------------------------------------
Street Address:
---------------------------------------------------
City, State and Zip Code:
-----------------------------------------
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
-------------------------------------------------------------
Street Address:
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City, State and Zip Code:
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