EXHIBIT 10.1.4
_______________________________________________________________________________
WARRANT REGISTRATION RIGHTS AGREEMENT
between
▇▇▇▇▇▇▇ HOLDINGS INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Warrant Agent
Dated as of November 26, 1997
_______________________________________________________________________________
WARRANT REGISTRATION RIGHTS AGREEMENT
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of November 26, 1997
(this "Agreement"), between ▇▇▇▇▇▇▇ HOLDINGS INC., a Delaware corporation (the
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"Company"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking
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corporation, as warrant agent (in such capacity, the "Warrant Agent").
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Pursuant to the terms of a Purchase Agreement, dated November 26, 1997
(the "Purchase Agreement"), among the Company and SBC Warburg Dillon Read Inc.
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and BT Alex. ▇▇▇▇▇ Incorporated, as initial purchasers (the "Initial
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Purchasers"), the Company has agreed to issue and sell to the Initial Purchasers
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an aggregate of 100,000 warrants (the "Warrants"), to purchase four (4) shares
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of Common Stock (as defined below) of the Company at an exercise price of $0.10
per share, as part of 100,000 units (the "Units"), each Unit consisting of one
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share of 13 3/4% Series A Cumulative Redeemable Exchangeable Preferred Stock of
the Company (the "Senior Preferred Stock"), and one Warrant. The Senior
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Preferred Stock and the Warrant included in each Unit will not be separately
tradeable until the earliest to occur of: (i) the date which is 90 days after
the Closing Date (as defined below), (ii) such earlier date as may be determined
by the Initial Purchasers, (iii) in the event of a Change of Control (as defined
in the Warrant Agreement), the date on which the Company mails notice thereof to
holders of the Senior Preferred Stock, and (iv) the date upon which a
registration statement with respect to shares of preferred stock to be exchanged
for the Senior Preferred Stock is declared effective pursuant to the Preferred
Stock Registration Rights Agreement (as defined below).
In consideration of the foregoing and of the mutual agreements
contained herein and in the Unit Purchase Agreement, the Company and the Warrant
Agent hereby agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Auditors" means, at any time, the independent auditors of the Company
at such time.
"Blackout Period" has the meaning specified in Section 2 hereof.
"Board" means the board of directors of the Company from time to time.
"Closing Date" means the date hereof.
"Comfort Letter" has the meaning specified in Section 3 hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the common stock, par value $0.0001 per share, of
the Company.
"Company" has the meaning specified in the preamble to this Agreement.
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"Company IPO Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Demand Period" has the meaning specified in Section 2 hereof.
"Demand Registration Rights" has the meaning specified in Section 2
hereof.
"Demand Registration Statement" has the meaning specified in Section 2
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
"Expiration Date" means the twelfth anniversary of the Closing Date.
"Holders" means the record holders of the Warrants and the holders of
Common Shares (or other securities) received upon exercise thereof.
"Includible Secondary Shares" has the meaning specified in Section 2
hereof.
"Includible Shares" has the meaning specified in Section 2 hereof.
"Initial Purchasers" has the meaning specified in the recitals to this
Agreement.
"managing underwriter" has the meaning specified in Section 2 hereof.
"Opinion" has the meaning specified in Section 3 hereof.
"Other IPO Shares" has the meaning specified in Section 2 hereof.
"Piggy-back Registration Rights" has the meaning specified in Section
2 hereof.
"Piggy-back Registration Statement" has the meaning specified in
Section 2 hereof.
"Registration Statement" has the meaning specified in Section 2
hereof.
"Resales Registration Statement" has the meaning specified in Section
9 hereof.
"Resale Shelf" has the meaning specified in Section 3 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Senior Preferred Stock" has the meaning specified in the recitals to
this Agreement.
"Shelf Expiration Date" has the meaning specified in Section 3 hereof.
"Underlying Securities" means the Common Shares issuable upon exercise
of the
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Warrants or such other securities as shall be issuable upon the exercise of the
Warrants, pursuant to the Warrant Agreement.
"Unit Purchase Agreement" has the meaning specified in the recitals to
this Agreement.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrants" has the meaning specified in the recitals to this
Agreement.
"Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date between the Company and the Warrant Agent.
"Warrant Shares" has the meaning specified in Section 2 hereof.
"Warrant Shelf Registration Statement" has the meaning specified in
Section 3 hereof.
2. Registration Rights.
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(a) Demand Registrations Rights.
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(i) Following the earlier of (x) the 180th day after an initial
public offering of Common Stock (or other securities) issuable upon the
exercise of the Warrants or (y) the fifth anniversary of the Closing Date,
and for a period of twelve years (the "Demand Period"), the Holders of at
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least 25% of the Warrants then outstanding shall have the right ("Demand
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Registration Rights") to require the Company to file a registration
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statement under the Securities Act in respect of an underwritten offering
and sale of Common Shares issuable upon exercise of such Holders' Warrants
or such other securities issuable upon exercise of the Warrants, or Common
Shares or such other securities previously received upon exercise of
Warrants pursuant to the Warrant Agreement (the "Warrant Shares"),
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provided, however, that Holders shall be entitled to only two (2) Demand
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Registration Rights hereunder. After the Company receives a written request
from such Holders demanding that the Company so register the number of
Warrant Shares specified in such request, the Company shall file with the
Commission and thereafter use its best efforts to cause to be declared
effective within 120 days of such demand a registration statement (a
"Demand Registration Statement") providing for the registration of all
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Warrant Shares as such Holders shall have demanded be registered.
(ii) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, until the earliest
practicable time at which such Demand Registration Statement can reasonably
be effective (the "Blackout Period"), the filing of the Demand Registration
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Statement if the Company shall determine that any such filing or the
offering of any Warrant Shares would (x) in the reasonable judgment of the
Board, materially impede, delay or otherwise interfere with any pending or
contemplated financing, acquisition, corporation reorganization or other
similar transaction involving the Company, (y) based upon advice from the
Company's investment banker or financial
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advisor, adversely affect any pending or contemplated offering or sale of
any class of securities by the Company, or (z) require disclosure of
material nonpublic information which, if disclosed at such time, would be
materially harmful to the interests of the Company and its shareholders;
provided, however, that the Blackout Period shall terminate upon the
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completion or abandonment of the relevant financing, acquisition, corporate
reorganization or other similar transaction, such time as such Demand
Registration Statement shall no longer affect the relevant pending or
contemplated offering of securities by the Company, or the public
disclosure by the Company or public admission by the Company of such
material nonpublic information or such time as such material nonpublic
information shall be publicly disclosed, as the case may be. After the
expiration of any Blackout Period and without any further request from any
Holder, the Company shall effect the filing of the Demand Registration
Statement and shall use its best efforts to cause any such Demand
Registration to be declared effective as promptly as practicable unless
Holders shall have, prior to the effective date of such Demand Registration
Statement, withdrawn in writing the initial request such that less than 25%
of the Warrant Shares originally requested to be included in the
registration shall not have withdrawn, in which case such withdrawn request
shall not constitute a demand for purposes of Section 2(a)(i) hereunder.
(iii) Except with respect to a request by Holders under Section
2(a)(i) which is subsequently withdrawn (in the manner described above)
prior to such Demand Registration Statement becoming effective by reason of
(x) a material adverse change affecting the Company or capital markets
generally, (y) notification by the Company of an intention to file a
registration with respect to the Common Shares (or other securities
issuable upon exercise of the Warrants), or (iii) the circumstances
described in Section 2(a)(ii), such withdrawing Holders shall pay all
expenses relating to the preparation of such withdrawn Demand Registration
Statement.
(b) Piggy-Back Registration Rights.
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(i) If the Company proposes to file a registration statement with the
Commission respecting an offering of any shares of Common Stock (or other
securities) issuable upon exercise of the Warrants (other than an offering
registered solely on Form S-4 or S-8 or any successor form thereto and
other than the initial public offering of shares of Common Stock (or other
securities) issuable upon exercise of the Warrants if no shareholder of the
Company, including the Holders pursuant to Section 2(a), participates
therein), the Company shall give prompt written notice to all the Holders
of Warrants, Warrant Shares or such other securities received upon exercise
of Warrants at least 30 days prior to the initial filing of the
registration statement relating to such offering (the "Piggy-Back
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Registration Statement" and, together with the Demand Registration
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Statement, the "Registration Statement"). Each such Holder shall have the
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right, within 20 days after delivery of such notice, to request in writing
that the Company include all or a portion of such Warrant Shares in such
Registration Statement ("Piggy-back Registration Rights"). The Company
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shall include in the public offering all of the Warrant Shares that a
Holder has requested be included, unless the underwriter for the public
offering or the underwriter managing the public offering (in either case,
the "managing underwriter") delivers a notice (a "Cutback Notice") pursuant
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to Section 2(b)(ii) or 2(b)(iii) hereof. The managing underwriter may
deliver one or more Cutback Notices at any time prior to the execution of
the underwriting agreement for the public
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offering.
(ii) If a proposed public offering includes both securities to be
offered for the account of the Company ("Company IPO Shares") and shares to
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be sold by shareholders, the provisions of this Section 2(b)(ii) shall be
applicable if the managing underwriter delivers a Cutback Notice stating
that, in its opinion, the number of Common Shares (other than Warrant
Shares to be sold by the Holders) that selling shareholders propose to sell
therein, whether or not such selling shareholders have the right to include
shares therein (the "Other IPO Shares"), plus the number of Warrant Shares
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that the Holders have requested to be sold therein, plus the Company IPO
Shares, exceeds the maximum number of shares specified by the managing
underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the
Company IPO Shares. Such maximum number of shares that may be so sold,
excluding the Company IPO Shares, are referred to as the "Includible
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Shares."
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If the managing underwriter delivers such Cutback Notice, the Company
shall be entitled to include all of the Company IPO Shares in the public
offering and each requesting Holder shall be entitled to include in the
public offering up to its pro rata portion of the Includible Shares and in
priority to the inclusion of any Other IPO Shares that are proposed to be
sold in such public offering. No shareholder that proposes to sell Other
IPO Shares in the proposed initial public offering may sell any such shares
therein unless all Warrant Shares requested by the Holders to be sold
therein are so included.
(iii) If a proposed public offering is entirely a secondary offering,
the provisions of this Section 2(b)(iii) shall be applicable if the
managing underwriter delivers a Cutback Notice stating that, in its
opinion, the aggregate number of Warrant Shares and Other IPO Shares
proposed to be sold therein exceeds the maximum number of shares (the
"Includible Secondary Shares") specified by the managing underwriter in
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such Cutback Notice that may be distributed without adversely affecting the
price, timing or distribution of the Common Shares being distributed. If
the managing underwriter delivers such Cutback Notice, each requesting
Holder shall be entitled to include in the public offering up to its pro
rata portion of the Includible Secondary Shares and in priority to the
inclusion of any Other IPO Shares that are proposed to be sold in such
public offering. No shareholder that proposes to sell Other IPO Shares in
such public offering may sell any such shares therein unless all Warrant
Shares requested by the Holders to be sold therein are so included.
(iv) The underwriting agreement for such public offering shall
provide that each requesting Holder shall have the right to sell its
Warrant Shares (other than Warrant Shares excluded from such public
offering pursuant to a Cutback Notice and the terms of Sections 2(b)(ii)
and 2(b)(iii)) to the underwriters and that the underwriters shall purchase
the Warrant Shares at the price paid by the underwriters for the Common
Shares sold by the Company and/or other selling shareholders, as the case
may be.
3. Shelf Registration.
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(a) If only the Company sells Common Shares (or other securities
issuable upon the exercise of Warrants) in an initial public offering or all of
the Warrant Shares (or other securities issuable upon the exercise of Warrants)
have not been sold in an initial public offering
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or a public offering of Common Shares (or such other securities) within 180 days
after the closing of the Company's initial public offering of Common Shares, the
Company shall use its best efforts to cause to be filed pursuant to Rule 415
under the Securities Act a shelf registration statement on the appropriate form
(the "Warrant Shelf Registration Statement") covering the issuance of the
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Warrant Shares upon exercise of the Warrants and shall use its best efforts to
cause the Warrant Shelf Registration Statement to become effective under the
Securities Act within 180 days after the closing date of the initial public
offering of Common Shares; provided, however, that (x) in no event may the
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Warrant Shelf Registration Statement be declared effective prior to the first
anniversary of the Closing Date and (y) if the Commission shall request that the
Company register the resale of the Warrant Shares instead of the issuance
thereof, the Warrant Shelf Registration Statement shall register such resale as
opposed to such issuance. The Company shall use reasonable efforts to keep the
Warrant Shelf Registration Statement continuously effective until the earlier of
(1) such time as all Warrants have been exercised, (2) the Expiration Date and
(3) the date on which all Warrant Shares are freely transferable, or in the case
of clause (y), such time as all Warrant Shares have been resold (the "Shelf
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Expiration Date"). Prior to filing the Warrant Shelf Registration Statement or
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any amendment thereto, the Company shall provide a copy thereof to the Initial
Purchasers and their counsel and afford them a reasonable time to comment
thereon.
(b) If the Warrant Shelf Registration Statement shall register the
resale of the Warrant Shares (a "Resale Shelf") as provided in clause (y) of the
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proviso to the first sentence of Section 3(a) above, the Company agrees to:
(i) make available for inspection by a representative of the Holders,
any underwriter participating in any disposition pursuant to such Resale
Shelf and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, financial and other records,
documents and properties of the Company or any subsidiary thereof that are
pertinent to the conduct of due diligence customary for an underwritten
offering, and cause the officers, directors and employees of the Company or
any such subsidiary to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
a Resale Shelf; provided, however, that such persons shall first agree in
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writing with the Company to use such information only in connection with
the transaction for which such information was obtained and that any
information that is reasonably and in good faith designated by the Company
or any such subsidiary in writing as confidential at the time of delivery
of such information shall be kept confidential by such persons, unless and
to the extent that disclosure of such information is required by law or
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
person. Each selling Holder, underwriter, attorney or accountant
requesting disclosure will agree that it will, upon learning that
disclosure of such information is sought in connection with a court
proceeding, give notice to the Company and allow the Company at its own
expense to undertake appropriate action to prevent disclosure of the
information deemed confidential;
(ii) use its best efforts to cause all Warrant Shares sold under a
Resale Shelf to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are then
listed if requested by the Holders of Warrant Shares representing a
majority of the Warrants originally issued, to the extent such Warrant
Shares satisfy applicable listing requirements;
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(iii) provide a reasonable number of copies of the prospectus
included in such Resale Shelf to Holders that are selling Warrant Shares
pursuant to such Resale Shelf;
(iv) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrant Shares, upon the effectiveness of
such Resale Shelf, a customary "10b-5" opinion of independent counsel (an
"Opinion") and a customary "cold comfort" letter of independent auditors (a
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"Comfort Letter");
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(v) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrant Shares, an Opinion and Comfort
Letter with respect to each Form 10-K, including any amendments thereto,
that is incorporated by reference in such Resale Shelf upon the initial
filing with the Commission of such documents; and
(vi) notify the Warrant Agent, for distribution to the Holders, (A)
when the Resale Shelf has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (B) of any request
by the Commission or any state securities authority for amendments and
supplements to the Resale Shelf or of any material request by the
Commission or any state securities authority for additional information
after the Resale Shelf has become effective, (C) of the issuance by the
Commission or any state securities authority of any stop order suspending
the effectiveness of the Resale Shelf or the initiation of any proceedings
for that purpose, (D) if, between the effective date of the Resale Shelf
and the closing of any sale of Warrant Shares covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, including
this Agreement, relating to disclosure cease to be true and correct in all
material respects or if the Company receives any notification with respect
to the suspension of the qualification of the Warrant Shares for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (E)
of the happening of any event during the period the Resale Shelf is
effective such that such Resale Shelf or the related prospectus contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make statements therein not
misleading and (F) of any determination by the Company that a post-
effective amendment to a Registration Statement would be appropriate. The
Holders hereby agree to suspend use of the prospectus contained in a Resale
Shelf upon receipt of such notice under clause (C) (but only to the extent
of the issuance of any stop order), (E) or (F) above until, in the case of
clause (C) above, such stop order is removed or rescinded, or, in the case
of clause (E) and (F) above, the Company has amended or supplemented such
prospectus to correct such misstatement or omission.
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4. Suspension.
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Notwithstanding the foregoing, in addition to any suspension
contemplated by clause (C), (E) or (F) of Section 3(vi), during any consecutive
365-day period during which the Warrants are exercisable, the Company shall have
the privilege to suspend availability of the Warrant Shelf Registration
Statement and the related prospectus for up to 60 days in the aggregate, except
during the 60 days immediately prior to the Expiration Date, if the Board
determines in good faith that there is a valid purpose for such suspension and
provides notice of such determination (but not the purpose) to the Holders at
their addresses appearing in the register of Warrants maintained by the Warrant
Agent.
5. Blue Sky.
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The Company shall use its reasonable best efforts to register or
qualify the Underlying Securities proposed to be sold or issued pursuant to the
Registration Statement or the Warrant Shelf Registration Statement under all
applicable securities or "blue sky" laws of all jurisdictions in the United
States in which any Holder of Warrants may or may be deemed to purchase
Underlying Securities upon the exercise of Warrants or resale of the Warrant
Shares, as the case may be, and shall use its reasonable best efforts to
maintain such registration or qualification through the earliest of (A) in the
case of the Registration Statement, the date upon which all of the Warrant
Shares have been sold or such other date as shall be required by applicable law,
(B) the date upon which all Warrants have been exercised or all Warrant Shares
have been resold, as the case may be, under the Warrant Shelf Registration
Statement and (C) the Expiration Date; provided, however, that the Company shall
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not be required to (i) qualify as a foreign corporation or as a broker or a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 5, (ii) file any general consent to
service of process or (iii) subject itself to taxation in any jurisdiction if it
is not otherwise so subject.
6. Accuracy of Disclosure.
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The Company (and its successors) represents and warrants to each
Holder (and each beneficial owner of a Warrant or Warrant Share) and agrees for
the benefit of each Holder (and each beneficial owner of a Warrant or Warrant
Share) that, except during any period in which the availability of the Warrant
Shelf Registration Statement has been suspended, (i) the Warrant Shelf
Registration Statement and the documents incorporated by reference therein will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading; and (ii) the
prospectus contained in the Warrant Shelf Registration Statement delivered to
such Holder upon its exercise of Warrants or pursuant to which such Holder sells
its Warrant Shares, as the case may be, and the documents incorporated by
reference therein will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, except that the
representations, warranties and agreements set forth in this Section 6 do not
apply to statements or omissions in the Warrant Shelf Registration Statement or
any such prospectus based upon information relating to any Holder furnished to
the Company in writing by such Holder expressly for use therein.
7. Indemnity.
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The Company hereby agrees to indemnify each beneficial owner of a
Warrant and
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each person, if any, who controls any beneficial owner of a Warrant within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, any beneficial owner
of a Warrant (whether or not it is, at the time the indemnity provided for in
this Section 7 is sought, such a beneficial owner), from and against all losses,
damages or liabilities which such beneficial owner or any such controlling or
affiliated person suffers as a result of any breach, on the date of any exercise
of a Warrant by such beneficial owner or the resale of any Warrant Share by such
Holder, in either case pursuant to the Warrant Shelf Registration Statement, of
the representations, warranties or agreements contained in Section 6. Each
beneficial owner of a Warrant Share sold pursuant to a Resale Shelf, by
accepting its beneficial ownership of a Warrant, hereby (i) agrees to provide
the Company with information with respect to it that the Company reasonably
requests in connection with any Resale Shelf and (ii) agrees, severally and not
jointly, to indemnify the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act against any liability incurred
by it or such controlling person as a result of any misstatement of information
provided by such beneficial owner to the Company in writing expressly for
inclusion in the Resale Shelf or any omission from such information that the
Company reasonably requested such Holder to provide.
8. Expenses.
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Except as otherwise stated in Section 2(a), all expenses incident to
the Company's performance of or compliance with its obligations under this
Agreement will be borne by the Company, regardless of whether a Registration
Statement or Warrant Shelf Registration Statement becomes effective, including
without limitation (i) all Commission or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all reasonable fees and
expenses incurred in connection with compliance with state securities or "blue
sky" laws, (iii) all reasonable expenses of any persons incurred by or on behalf
of the Company in preparing or assisting in preparing, word processing, printing
and distributing any registration statement, any prospectus, any amendments or
supplements thereto and other documents relating to the performance of and
compliance with this Agreement, (iv) the reasonable fees (including legal fees
and expenses) and disbursements of the Warrant Agent, (v) the reasonable fees
and disbursements of counsel for the Company and (vi) the fees and
disbursements, if any, of the Auditors but excluding any fees, expenses and
disbursements of the Holders (not included above), including, without
limitation, (x) fees and disbursements of any counsel retained by the
participating Holders and (y) the Holders' share of underwriting discounts and
commissions.
9. Resale Shelf Registration Statement
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In the event that, after an initial public offering of Common Shares,
any Initial Purchaser, or any successor thereto, in their opinion, is or becomes
an Affiliate (as such term is defined in Rule 144 under the Securities Act) of
the Company, or any successor thereto, the Company (or its successor) shall use
its best efforts to cause to be filed as soon as practicable after receiving
notice thereof from such Initial Purchaser (or its successor) a shelf
registration statement (the "Resales Registration Statement") under the
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Securities Act providing for the resale by such Initial Purchaser (or its
successor) of all Warrants and Common Shares it acquires from time to time in
connection with market-making activities and to have such shelf registration
statement declared effective by the Commission. The provisions of this
Agreement concerning the Warrant Shelf Registration Statement shall apply to the
Resales Registration Statement as if
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such Resales Registration Statement were the Warrant Shelf Registration
Statement (except that the Company (or its successor) will use its best efforts
to keep the Resales Registration Statement effective until the earlier of (i)
the twelfth anniversary of the Closing Date and (ii) such time as such Initial
Purchaser shall, in its opinion, cease to be an Affiliate of the Company, as
evidenced by written notice sent promptly upon such event).
10. Miscellaneous.
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(a) No Inconsistent Agreements. Each of the Company and the Warrant
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Agent represent to the other that it has not entered into, and agrees that on or
after the date of this Agreement it will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Warrants or Warrant
Shares in this Agreement or otherwise conflicts with the provisions hereof. The
Company represents that the rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Warrant Agent have obtained the
written consent of Holders of at least a majority of the outstanding Warrants
affected by such amendment, modification, supplement, waiver or consent;
provided that any amendment, modification or supplement to this Agreement which,
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in the good faith opinion of the Board (and evidenced by a resolution of the
Board), does not adversely affect any Holder, shall not be subject to such
requirement for written consent.
(c) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 10(c); (ii) if to the Company, initially at the Company's address set
forth in the Warrant Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 10(c); and
(iii) if to the Warrant Agent, initially at the Warrant Agent address set forth
in the Warrant Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 10(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
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(d) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation, subsequent Holders; provided that
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nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants in violation of the terms of the Unit Purchaser
Agreement, the Warrant Agreement or applicable law. If any transferee of any
Holder shall acquire Warrants, in any manner, whether by operation of law or
otherwise, such Warrants shall be held subject to all of the terms of this
Agreement and the Warrant Agreement, and by taking and holding such Warrants
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement or the Warrant
Agreement and such person shall be entitled to receive the benefits hereof.
(e) Purchases and Sales of Warrants. The Company shall not, and shall
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use its best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any
Warrants other than Warrants acquired and cancelled.
(f) Third Party Beneficiary. The Holders shall be third party
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beneficiaries to the agreements made hereunder between the Company and the
Warrant Agent, and each Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder. Notwithstanding anything
to the contrary contained herein, the Initial Purchasers will be a third party
beneficiary to the agreements between the Company and the Warrant Agent
contained in Section 9 hereof, such section shall not be amended, modified or
supplemented without the prior written consent of the Initial Purchasers and the
Company's obligations under Section 9 will survive the termination of this
Agreement and the performance of all other obligations under this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the internal
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laws of the State of New York.
(j) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Waiver of Immunity. To the extent that the Company has or
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hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgement,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under this Agreement to the fullest extent permitted by law.
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(l) Initial Public Offering. Notwithstanding anything to the contrary
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herein contained, if the Company conducts an initial public offering of equity
securities (other than Common Shares), the Company will give the Holders the
opportunity to convert such Warrants into warrants to purchase such equity
securities and their Warrant Shares into such equity securities. In addition, if
▇▇▇▇▇▇▇ Fasteners Inc. (or any entity owning a majority of the Capital Stock or
assets of ▇▇▇▇▇▇▇ Fasteners Inc.) ("Fasteners") conducts an initial public
offering of equity securities, the Company shall, and shall cause Fasteners to,
give holders of Warrants and Warrant Shares the opportunity to convert such
Warrants into warrants to purchase such equity securities of Fasteners and the
opportunity to convert such Warrant Shares into such equity securities of
Fasteners. All rights and obligations contained in this Agreement with respect
to the Warrants and Warrant Shares shall, upon any such conversion, apply
equally to any warrants or equity securities of Fasteners. Such conversion
opportunities will be on terms and conditions determined to be fair and
reasonable by the Board.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇ HOLDINGS INC.
By ______________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By ______________________________
Name:
Title: