Exhibit 10.5
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COMMON STOCK PURCHASE WARRANT NO. 1
Dated as of November 19, 1999
for 87,480 Shares of Common Stock of
NA HOLDING CORPORATION
Expiring November 19, 2004
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Table of Contents
1. Exercise of Warrant................................................2
1.1. Manner of Exercise.........................................2
1.2. When Exercise Deemed Effected..............................3
1.3. Delivery of Stock Certificates, etc........................3
1.4. Payment of Taxes and Expenses..............................4
2. Adjustment of Common Stock Issuable upon Exercise..................4
2.1. Number of Shares; Warrant Price............................4
2.2. Stock Dividends, Subdivisions and Combinations.............4
2.3. Extraordinary Dividends and Distributions..................5
2.4. Issuance of Additional Shares of Common Stock..............5
2.5. Issuance of Warrants or Other Rights.......................6
2.6. Issuance of Convertible Securities.........................6
2.7. Superseding Adjustment.....................................7
2.8. Consolidation, Merger, Sale of Assets,
Reorganization, etc. ......................................8
2.9. Other Dilutive Events......................................9
2.10. Other Provisions Applicable to Adjustments under
this Section 2 ............................................9
3. Notice of Adjustment..............................................11
4. Notices of Corporate Action.......................................12
5. Restrictions on Transfer..........................................12
5.1. Certain Restrictions......................................12
5.2 Right of First Refusal....................................15
5.3. Drag-Along Rights.........................................16
5.4. Registration; Restrictions on Sale upon Public Offering...19
5.5. Termination of Restrictions...............................19
6. Registration and Participation Rights.............................20
7. Availability of Information.......................................20
8. Reservation of Stock, etc.........................................20
9. Ownership, Transfer and Substitution of the Warrant...............20
9.1. Ownership of Warrant......................................20
9.2 Transfer and Exchange of the Warrant......................20
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9.3. Division and Combination of the Warrant...................20
9.4. Replacement of the Warrant................................21
10. Definitions......................................................21
11. Rights of Holders................................................25
12. Notices..........................................................26
13. Amendment........................................................28
14. Successors and Assigns...........................................28
15. Third Party Beneficiary..........................................28
16. Miscellaneous....................................................28
Exhibit A Form of Subscription
Exhibit B Form of Assignment
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THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY AS SET FORTH HEREIN (INCLUDING A FIRST REFUSAL RIGHT PURSUANT TO
SECTION 5.2 HEREOF) AND IN A REGISTRATION AND PARTICIPATION AGREEMENT, DATED AS
OF MARCH 30, 1998, AS AMENDED AS OF NOVEMBER 19, 1999, AS SUCH AGREEMENT MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE OFFICES OF THE
COMPANY.
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE
HEREOF MAY BE SOLD OR OTHERWISE DISPOSED OF IN VIOLATION OF SUCH ACT, APPLICABLE
STATE SECURITIES LAWS, THE PROVISIONS OF THIS WARRANT OR SUCH REGISTRATION AND
PARTICIPATION AGREEMENT.
Warrant No. 1
No. of Shares of Common Stock: 87,480
NA Holding Corporation
Common Stock Purchase Warrant
Expiring November 19, 2004
New York, N.Y.
November 19, 1999
NA Holding Corporation, a Delaware corporation (the "Company"), for
value received, hereby certifies that NFC International Holdings (Netherlands
II) BV, a company organized under the laws of The Netherlands (the "Purchaser"),
or its permitted
assigns, is entitled to purchase from the Company 87,480 duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") at the purchase price per
share determined pursuant to Sections 1.1 and 2 hereof, at any time or from time
to time after the date hereof, but prior to 5:00 P.M., New York City time, on
November 19, 2004, all subject to the terms, conditions and adjustments set
forth below in this Warrant.
This Warrant is the Common Stock Purchase Warrant (the "Warrant" or
"Warrants" such terms to include any other warrant issued upon transfer,
division or combination hereof or in substitution or exchange therefor),
originally issued on November 19, 1999 (the "Closing Date") in connection with
the issuance by the Company of 174,961 shares of its Common Stock as partial
payment of the purchase price under the Acquisition Agreement, dated as of
September 14, 1999, between the Company and NFC plc, a company organized under
the laws of England and Wales (the "Acquisition Agreement"). The Warrant
evidences rights to purchase 87,480 duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock, par value $0.01 per share (such number
of shares of Common Stock referred to herein as the "Initial Exercise Shares"),
subject to adjustment as provided herein. Certain capitalized terms used in the
Warrant are defined in Section 10.
1. Exercise of Warrant. 1.1. Manner of Exercise. (a) The Warrant may
be exercised by the holder of the Warrant or any portion hereof (the "Holder"),
in whole or in part, during normal business hours on any Business Day by
surrender of the Warrant, with the form of subscription at the end hereof (or a
reasonable facsimile thereof) (the "Subscription Notice") duly executed by such
Holder, to the Company at its principal office (or, if such exercise shall be in
connection with an underwritten Public Offering of shares of Common Stock (or
Other Securities) subject to the Warrant, at the location at which the Company
shall have agreed to deliver the shares of Common Stock (or Other Securities)
subject to such offering), accompanied by payment, in cash or by certified or
official bank check payable to the order of the Company or by any other
reasonably acceptable form of immediately available funds, in the amount (such
amount referred to herein as the "Exercise Price") obtained by multiplying (i)
the number of shares of Common Stock (without giving effect to any adjustment
provided for in Section 2) designated in such Subscription Notice by (ii)
$400.00, and such Holder shall thereupon be entitled to receive the number of
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) determined as provided in Section 2 hereof.
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(b) In lieu of tendering the Exercise Price to the Company, the
Holder may elect to perform a "Cashless Exercise" of the Warrant, in whole or in
part, by surrendering the Warrant to the Company, with a duly executed
Subscription Notice marked "Cashless Exercise" and designating the number of
shares of Common Stock desired by the Holder out of the total for which the
Warrant is exercisable (without giving effect to any adjustments provided for in
Section 2). The Holder shall thereupon be entitled to receive the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock
(or Other Securities) having a value (at the Fair Market Value) that is equal to
the excess of (i) the then Fair Market Value per share of Common Stock (or Other
Securities) multiplied by the number of the shares of Common Stock (or Other
Securities) (determined as of the Business Day immediately preceding the date of
any such Subscription Notice) into which the Warrant, or portion thereof
designated by the Holder, would have been exercisable pursuant to Section 1.1(a)
upon payment of the Exercise Price by the Holder over (ii) the Exercise Price
the Holder would have been required to pay under Section 1.1(a) in respect of
such an exercise.
1.2. When Exercise Deemed Effected. Each exercise of the Warrant
shall be deemed to have been effected immediately prior to the close of business
on the Business Day on which the Warrant shall have been surrendered to the
Company as provided in Section 1.1, and at such time the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
(or Other Securities) shall be issuable upon such exercise as provided in
Section 1.3 shall be deemed to have become the holder or holders of record
thereof.
1.3. Delivery of Stock Certificates, etc. As soon as practicable
after the exercise of the Warrant, in whole or in part, and in any event within
five Business Days thereafter (unless such exercise shall be in connection with
an underwritten Public Offering of shares of Common Stock (or Other Securities)
subject to the Warrant, in which event, concurrently with such exercise), the
Company at its expense (including the payment by it of any taxes applicable to
an issuer upon the issuance of shares, but excluding transfer taxes and any
other taxes imposed by law upon the Holder and subject to Section 1.4) shall
cause to be issued in the name of and delivered to the Holder or, subject to
Section 6, as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct,
(a) a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock (or Other
Securities) to which such Holder shall be entitled upon such exercise plus, in
lieu of any fractional share to which such Holder would otherwise be entitled,
cash in an amount equal to the same fraction of the Fair Market Value per share
of such Common Stock (or Other Securities) on the Business Day next preceding
the date of such exercise, and
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(b) in case such exercise is in part only, a new Warrant or Warrants
of like tenor, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of the Warrant
minus the number of such shares designated by the Holder upon such exercise as
provided in Section 1.1.
1.4. Payment of Taxes and Expenses. The Company shall pay all
expenses in connection with, and all taxes and other governmental charges that
may be imposed with respect to, the issuance or delivery of the Warrant and the
shares of Common Stock (or Other Securities) to which such Holder shall be
entitled upon exercise of the Warrant, unless such tax or charge is imposed by
law upon the Holder, in which case such taxes or charges shall be paid by the
Holder. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issuance of any
certificate for shares of Common Stock (or Other Securities) in any name other
than that of the Holder, and in such case the Company shall not be required to
issue or deliver any stock certificate until such tax or other charge has been
paid or it has been established to the satisfaction of the Company that no such
tax or other charge is due.
2. Adjustment of Common Stock Issuable upon Exercise. 2.1. Number of
Shares; Warrant Price. The number of shares of Common Stock which the Holder
shall be entitled to receive upon each exercise hereof shall be determined by
multiplying the number of shares of Common Stock which would otherwise (but for
any application of the provisions of this Section 2) be issuable upon such
exercise, as designated by the Holder pursuant to Section 1.1, by a fraction of
which (i) the numerator is $400.00 and (ii) the denominator is the Warrant Price
(as defined below) in effect on the date of such exercise. The "Warrant Price,"
which shall initially be $400.00 shall be adjusted and readjusted from time to
time as provided in Section 2 hereof and, as so adjusted or readjusted, shall
remain in effect until a further adjustment or readjustment thereof is required
by Section 2.
2.2. Stock Dividends, Subdivisions and Combinations. If at any time
the Company shall:
(i) issue or deliver any shares of Common Stock as a result of the
declaration or payment of a dividend of Common Stock payable in, or other
distribution to holders of Common Stock of, shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock,
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then the Warrant Price then in effect shall be adjusted to equal (1) the Warrant
Price in effect immediately prior to such event multiplied by the number of
shares of Common Stock for which the Warrant is exercisable immediately prior to
the adjustment divided by (2) the number of shares of Common Stock which a
record holder of the same number of shares of Common Stock for which the Warrant
is exercisable immediately prior to the happening of such event would own or be
entitled to receive after the happening of such event.
2.3. Extraordinary Dividends and Distributions. If at any time the
Company shall distribute to all holders of its outstanding Common Stock
evidences of indebtedness of the Company, cash (other than a regular dividend
payable in cash out of earned surplus of the Company), or assets or securities
other than the Common Stock (any such evidences of indebtedness, cash, assets or
securities, the "Assets"), then, in each case, the Warrant Price then in effect
shall be reduced to a price determined by multiplying such Warrant Price by a
fraction,
(i) the numerator of which shall be the Fair Market Value then in
effect less the value of such Assets applicable to one share of Common
Stock, and
(ii) the denominator of which shall be such Fair Market Value.
Any adjustment required by this Section 2.3 shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution, provided, however, that the
Company is not required to make an adjustment pursuant to this Section 2.3 if at
the time of such distribution the Company makes the same distribution to Holders
of Warrants as it makes to holders of Common Stock pro rata based on the number
of shares of Common Stock for which such Warrants are then exercisable.
2.4. Issuance of Additional Shares of Common Stock. (a) If at any
time after the date hereof the Company shall (except as hereinafter provided)
issue or sell any Additional Shares of Common Stock without consideration or in
exchange for consideration in an amount per Additional Share of Common Stock
less than the Fair Market Value at the time the Additional Shares of Common
Stock are issued, then the Warrant Price then in effect shall be reduced to a
price determined by multiplying such Warrant Price by a fraction,
(i) the numerator of which shall be (x) the number of shares of
Common Stock outstanding immediately prior to such issue or sale plus (y)
the number of shares of Common Stock which the aggregate consideration
received by the Com-
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pany for the total number of such Additional Shares of Common Stock so
issued or sold would purchase at the Fair Market Value, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such issue or sale.
(b) The provisions of paragraph (a) of this Section 2.4 shall not
apply to any issuance of Additional Shares of Common Stock for which an
adjustment is provided under Section 2.2.
2.5. Issuance of Warrants or Other Rights. If at any time after the
date hereof the Company shall take a record of holders of Common Stock for the
purpose of entitling them to receive a distribution of, or shall in any manner
(whether directly or by assumption in a merger in which the Company is the
surviving corporation) issue or sell, any warrants or other rights to subscribe
for or purchase any Additional Shares of Common Stock or any Convertible
Securities, whether or not such rights thereunder are immediately exercisable,
and the price per share for which Common Stock is issuable upon the exercise of
such warrants or other rights or upon conversion or exchange of such Convertible
Securities shall be less than the Fair Market Value in effect immediately prior
to the time of such issue or sale, then the Warrant Price shall be adjusted as
provided in Section 2.4 on the basis that the maximum number of shares of Common
Stock issuable pursuant to all such warrants or other rights or necessary to
effect the conversion or exchange of all such Convertible Securities shall be
deemed to have been issued and outstanding and the Company shall have received
all of the consideration payable therefor, if any, as of the date of the actual
issuance of such warrants or other rights. No further adjustments of the Warrant
Price shall be made upon the actual issuance of such Common Stock or of such
Convertible Securities upon exercise of such warrants or other rights or upon
the actual issuance of such Common Stock upon such conversion or exchange of
such Convertible Securities.
2.6. Issuance of Convertible Securities. If at any time the Company
shall take a record of the holders of Common Stock for the purpose of entitling
them to receive a distribution of, or shall in any manner (whether directly or
by assumption in a merger in which the Company is the surviving corporation)
issue or sell, any Convertible Securities, whether or not the rights to exchange
or convert thereunder are immediately exercisable, and the price per share for
which Common Stock is issuable upon such conversion or exchange shall be less
than the Fair Market Value in effect immediately prior to the time of such issue
or sale, then the Warrant Price shall be adjusted as provided in Section 2.4 on
the basis that the maximum number of shares of Common Stock necessary to effect
the conversion or exchange of all such Convertible Securities shall be deemed to
have been issued and outstanding and the Company shall have received all of the
consideration
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payable therefor, if any, as of the date of actual issuance of such Convertible
Securities. No adjustment of the Warrant Price shall be made under this Section
2.6 upon the issuance of any Convertible Securities which are issued pursuant to
the exercise of any warrants or other subscription or purchase rights therefor,
if any such adjustment shall previously have been made upon the issuance of such
warrants or other rights pursuant to Section 2.5. No further adjustments of the
Warrant Price shall be made upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities, and, if any issuance or
sale of such Convertible Securities is made upon exercise of any warrant or
other right to subscribe for or to purchase or any warrant or other right to
purchase any such Convertible Securities for which adjustments of the Warrant
Price have been or are to be made pursuant to other provisions of this Section
2, no further adjustments of the Warrant Price shall be made by reason of such
issuance or sale.
2.7. Superseding Adjustment. If, at any time after any adjustment of
the number of shares of Common Stock for which the Warrant is exercisable shall
have been made pursuant to Section 2.5 or 2.6 as the result of any issuance of
warrants, rights or Convertible Securities,
(i) such warrants or rights, or the right of conversion or exchange
in such other Convertible Securities, shall expire, and all or a portion
of such warrants or rights, or the right of conversion or exchange with
respect to all or a portion of such other Convertible Securities, as the
case may be, shall not have been exercised, or
(ii) the consideration per share for which shares of Common Stock
are issuable pursuant to such warrants or rights, or the terms of such
other Convertible Securities, shall be increased solely by virtue of
provisions therein contained for an automatic increase in such
consideration per share upon the occurrence of a specified date or event,
then such previous adjustment shall be rescinded and annulled and the shares of
Common Stock which were deemed to have been issued by virtue of the computation
made in connection with the adjustment so rescinded and annulled shall no longer
be deemed to have been issued by virtue of such computation. Thereupon, a
recomputation shall be made of the effect of such rights or options or other
Convertible Securities effective as of the date of such previous adjustment on
the basis of
(A) treating the number of shares of Common Stock or other property,
if any, theretofore actually issued or issuable pursuant to the previous
exercise of any such warrants or rights or any such right of conversion or
exchange, as having
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been issued on the date or dates of any such exercise and for the
consideration actually received and receivable therefor, and
(B) treating any such warrants or rights or any such other
Convertible Securities which then remain outstanding as having been
granted or issued immediately after the time of such increase of the
consideration per share for which shares of Common Stock or other property
are issuable under such warrants or rights or other Convertible
Securities,
whereupon a new adjustment of the number of shares of Common Stock for which the
Warrant is then exercisable shall be made effective as of the date of such
previous adjustment, which new adjustment shall supersede the previous
adjustment so rescinded and annulled. Any reduction in the number of shares of
Common Stock for which the Warrant is exercisable as a result of this Section
2.7 shall be applied in its entirety to the number of shares of Common Stock for
which the Warrant is exercisable as of the date such new adjustment is made,
provided that no such superseding adjustment shall require the Holder to pay any
additional amounts in respect of any Warrant previously exercised or to return
any Warrant Shares (as such term is defined in Section 5.1 below).
2.8. Consolidation, Merger, Sale of Assets, Reorganization, etc. (a)
In case at any time, the Company shall be a party to any transaction (including
without limitation a merger, consolidation, sale of all or substantially all of
the Company's assets or recapitalization of the Common Stock) in which the
previously outstanding Common Stock shall be changed into or exchanged for
different securities of the Company or changed into or exchanged for common
stock or other securities of another corporation or interests in a noncorporate
entity or other property (including cash) or any combination of any of the
foregoing (each such transaction being hereinafter referred to as the
"Transaction") and the Warrant has not been exercised in full prior to the
consummation of the Transaction, lawful and adequate provisions shall be made so
that, upon the basis and terms and in the manner provided in this Section 2.8,
the Holder shall receive, in lieu of the Common Stock issuable upon exercise of
the Warrant prior to such consummation, the stock and other securities, cash and
property to which the Holder would have been entitled upon the consummation of
the Transaction if the Holder had exercised the Warrant pursuant to Section
1.1(b) immediately prior thereto, subject to adjustments as nearly equivalent as
possible to the adjustments provided for in Section 2; and following the
consummation of the Transaction, the Warrant will represent only the right to
receive any such stock, other securities, cash or property.
(b) Upon any liquidation, dissolution or winding up of the Company,
the Holder shall receive such cash or property (less the Warrant Price) which
the Holder would have been entitled to receive upon the happening of such
liquidation, dissolution or
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winding up had the Warrant been exercised in full and the shares of Common Stock
in respect of such exercise issued immediately prior to the occurrence of such
liquidation, dissolution or winding-up.
2.9. Other Dilutive Events. In case any event shall occur as to
which the provisions of Section 2 are not strictly applicable but the failure to
make any adjustment would not fairly protect the exercise rights with respect to
the Warrant in accordance with the essential intent and principles of such
Section, then, in each such case, the Company shall appoint a firm of
independent certified public accountants of recognized national standing (which
may be the regular auditors of the Company), which shall give their opinion upon
the adjustment, if any, on a basis consistent with the essential intent and
principles established in Section 2, necessary to preserve, without dilution,
the exercise rights represented by the Warrant. Upon receipt of such opinion,
the Company will promptly mail a copy thereof to the Holder of the Warrant and
shall make the adjustments, if any, described therein.
2.10. Other Provisions Applicable to Adjustments under this Section
2. The following provisions shall be applicable to the making of adjustments to
the number of shares of Common Stock for which the Warrant is exercisable
provided for in this Section 2:
(a) Computation of Consideration. To the extent that any shares of
Common Stock or any Convertible Securities or any warrants or other rights to
subscribe for or purchase any shares of Common Stock or any Convertible
Securities shall be issued for cash consideration, the cash consideration
received by the Company therefor shall be the amount of the cash received by the
Company therefor, or, if such shares of Common Stock or Convertible Securities
are offered by the Company for subscription, the subscription price, or, if such
shares of Common Stock or Convertible Securities are sold to underwriters or
dealers for public offering without a subscription offering, the initial public
offering price (in any such case subtracting (A) any amounts paid or receivable
for accrued interest or accrued dividends and without taking into account (B)
any compensation, discounts or expenses paid or incurred by the Company for and
in the underwriting of, or otherwise in connection with, the issuance thereof).
To the extent that such issuance shall be for a consideration other than cash,
then, except as herein otherwise expressly provided, the amount of such
consideration shall be deemed to be fair value of such consideration at the time
of such issuance as determined in good faith by the Board of Directors of the
Company. In case any shares of Common Stock or any Convertible Securities or any
warrants or other rights to subscribe for or purchase such shares of Common
Stock or
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Convertible Securities shall be issued in connection with any merger in which
the Company issues any securities or as payment for all or part of the purchase
price for any securities, assets or businesses acquired by the Company or any of
its Subsidiaries, such shares of Common Stock or Convertible Securities, or
warrants or other rights shall, for all purposes under the Warrant, be deemed to
have been issued in exchange for consideration at least equal to, and the price
per share for which Common Stock is issuable upon the exercise of such warrants
or other rights or upon conversion or exchange of such Convertible Securities
shall be deemed at least equal to, the Fair Market Value in effect immediately
prior to the time of such issue or sale, and such issuance or sale shall not
give rise to an adjustment under this Section 2. The consideration for any
shares of Common Stock issuable pursuant to any warrants or other rights to
subscribe for or purchase the same shall be the consideration received by the
Company for issuing such warrants or other rights plus the additional
consideration payable to the Company upon exercise of such warrants or other
rights. The consideration for any shares of Common Stock issuable pursuant to
the terms of any Convertible Securities shall be the consideration, if any,
received by the Company for issuing warrants or other rights to subscribe for or
purchase such Convertible Securities, plus the consideration paid or payable to
the Company in respect of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any, payable to the Company
upon the exercise of the right of conversion or exchange in such Convertible
Securities. In case of the issuance at any time of any shares of Common Stock or
Convertible Securities in payment or satisfaction of any dividends upon any
class of stock other than Common Stock, the Company shall be deemed to have
received for such shares of Common Stock or Convertible Securities a
consideration equal to the amount of such dividend so paid or satisfied.
(b) Computation of Asset Value. To the extent that any Assets shall
be distributed to all holders of the Company's outstanding Common Stock in cash,
the value of such Assets shall be the amount of cash so distributed, or, if such
Assets are securities offered by the Company for subscription, the subscription
price, or if such Assets are securities sold to underwriters or dealers for
public offering without a subscription offering, the initial public offering
price (in any such case adding any accrued interest or dividends but without
taking into account any compensation, discounts or expenses paid or incurred by
the Company in connection therewith). To the extent that the Company shall so
distribute Assets other than cash, except as herein otherwise expressly
provided, then the value of such Assets shall be deemed to be fair value of such
Assets at the time of such distribution as determined in good faith by the Board
of Directors of the Company.
(c) When Adjustment to Be Made. The adjustments required by this
Section 2 shall be made whenever and as often as any specified event requiring
an adjustment shall occur, except that any adjustment of the number of shares of
Common Stock for which the Warrant is exercisable that would otherwise be
required may be postponed (except in the case of a subdivision or combination of
shares of the Common Stock, as provided for in Section 2.2) up to but not beyond
the date of exercise if such adjustment either by itself or with other
adjustments not previously made adds or subtracts less than
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1% of the shares of Common Stock for which the Warrant is exercisable
immediately prior to the making of such adjustment. Any adjustment representing
a change of less than such minimum amount (except as aforesaid) which is
postponed shall be carried forward and made as soon as such adjustment, together
with other adjustments required by this Section 2 and not previously made, would
result in a minimum adjustment or on the date of exercise. 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.
(d) Fractional Interest; Rounding. In computing adjustments under
this Section 2, fractional interests in Common Stock shall be taken into account
to the nearest 1/10th of a share, and adjustments in the Warrant Price shall be
made to the nearest $.01.
(e) When Adjustment Not Required. If the Company shall take a record
of the holders of its Common Stock or Preferred Stock for the purpose of
entitling them to receive subscription or purchase rights and shall, thereafter
and before the distribution to stockholders thereof, legally abandon its plan to
deliver such subscription or purchase rights, then no adjustment shall be
required by reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
(f) Escrow of Warrant Stock. If the Holder exercises the Warrant
after any property becomes distributable by reason of the taking of any record
of the holders of Common Stock as described in this Section 2, but prior to the
occurrence of the event for which such record is taken, any shares of Common
Stock issuable upon exercise by reason of any adjustment required by this
Section 2 shall be deemed the last shares of Common Stock for which the Warrant
is exercised (notwithstanding any other provision to the contrary herein). Such
shares or other property shall be held in escrow for the Holder by the Company
to be issued to the Holder upon and to the extent that the event actually takes
place, upon payment of the Exercise Price. Notwithstanding any other provision
to the contrary herein, if the event for which such record was taken fails to
occur or is rescinded, then such escrowed shares shall be canceled by the
Company and escrowed property returned.
3. Notice of Adjustment. Whenever the number of shares of Common
Stock for which the Warrant is exercisable or the Warrant Price shall be
adjusted pursuant to Section 2, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment, the method by
which the adjustment was calculated, the number of shares of Common Stock for
which the Warrant is exercisable and the Warrant Price after giving effect to
such adjustment or change. The Company shall promptly, and in any event within
fifteen days of such adjustment, cause a signed copy of such certificate to be
delivered to the Holder. The Company shall keep at the office of the Company
copies of all such cer-
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tificates and cause the same to be available for inspection during normal
business hours by the Holder.
4. Notices of Corporate Action. In the event of
(a) any taking by the Company of a record of the holders of its
Common Stock or Preferred Stock for the purpose of determining the holders
thereof who are entitled to receive any dividend payable in, or other
distribution of, shares of Common Stock, or any other dividend (other than a
regular dividend payable in cash out of earned surplus of the Company) or other
distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of Common Stock or any Convertible Securities, or to receive any other
right,
(b) any subdivision of outstanding shares of Common Stock into a
larger number of shares of Common Stock, or any combination of such shares into
a smaller number of shares of Common Stock,
(c) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or
merger involving the Company and any other Person or any transfer of all or
substantially all the assets of the Company to any other Person, or
(d) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company shall mail to each Holder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right, (ii) the date or expected date on which any such
subdivision, combination or issuance is to take place, and the amount of Common
Stock or Contingent Stock that shall be the subject of such subdivision,
combination or issuance and (iii) the date or expected date on which any such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding-up. Such notice shall be
mailed at least 30 Business Days prior to the date specified in subdivisions
(i), (ii) and (iii) above.
5. Restrictions on Transfer. 5.1. Certain Restrictions. The Warrant
and all shares of Common Stock (and Other Securities) issued upon the exercise
of the War-
12
rant (the "Warrant Shares") shall not be Transferred other than to an Affiliate
of NFC plc, directly or indirectly, except as provided in this Section 5.
(a) Warrant Restrictive Legend. Except as otherwise permitted by
this Section 5, the Warrant shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY AS SET FORTH HEREIN (INCLUDING A FIRST
REFUSAL RIGHT PURSUANT TO SECTION 5 HEREOF) AND IN A REGISTRATION AND
PARTICIPATION AGREEMENT, DATED AS OF MARCH 30, 1998, AS AMENDED AS OF
NOVEMBER 19, 1999, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE AT THE OFFICES OF THE SECRETARY OF NA HOLDING
CORPORATION. NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK
PURCHASABLE UPON EXERCISE HEREOF MAY BE SOLD OR OTHERWISE DISPOSED OF IN
VIOLATION OF SUCH ACT, APPLICABLE STATE SECURITIES LAWS, THE PROVISIONS OF
THIS WARRANT OR SUCH REGISTRATION AND PARTICIPATION AGREEMENT."
(b) Warrant Shares Restrictive Legend. Except as otherwise provided
in this Section 5, each certificate for Warrant Shares shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TRANSFER RESTRICTIONS (INCLUDING A RIGHT OF FIRST REFUSAL AND A HOLDBACK
AGREEMENT) SET FORTH IN A CERTAIN WARRANT, DATED NOVEMBER 19, 1999,
ORIGINALLY ISSUED BY NA HOLDING CORPORATION, AS SUCH WARRANT MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF NA HOLDING CORPORATION. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE ENTITLED TO CERTAIN OF THE BENEFITS OF AND ARE BOUND BY THE
OBLIGATIONS SET FORTH IN A CERTAIN REGISTRATION AND PARTICIPATION
AGREEMENT, DATED AS OF MARCH 30, 1998, AS AMENDED AS OF NOVEMBER 19, 1999,
AS SUCH AGREEMENT MAY BE
13
AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE
SECRETARY OF NA HOLDING CORPORATION. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF
SUCH WARRANT AND SUCH REGISTRATION AND PARTICIPATION AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE OR FOREIGN
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO NA HOLDING
CORPORATION AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
REASONABLY SATISFACTORY TO NA HOLDING CORPORATION, TO THE EFFECT THAT SUCH
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF SUCH ACT OR (C)
A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION, REASONABLY
SATISFACTORY TO COUNSEL FOR NA HOLDING CORPORATION, SHALL HAVE BEEN
OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (ii) SUCH DISPOSITION IS
PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM."
(c) Notice of Proposed Transfer; Opinion of Counsel. Prior to any
Transfer of any Restricted Securities that are not registered under an effective
registration statement under the Securities Act (other than a Transfer pursuant
to Rule 144 or any comparable rule under such Act), the holder of such
Restricted Securities shall give written notice (a "Transfer Notice") to the
Company of such holder's intention to effect such Transfer and shall comply in
all other respects with this Section 5.1(c). Each Transfer Notice shall describe
the manner and circumstances of the proposed Transfer in reasonable detail and
be accompanied by an opinion of counsel (which requirement may be waived by the
Company), who shall be independent of the holder proposing such Transfer (but
who may be the holder's regular outside counsel), experienced in Securities Act
matters and reasonably satisfactory to the Company, to the effect that the
proposed Transfer may be effected without registration. Subject to Section 5.2,
such holder of Restricted Securities shall thereupon be entitled to Transfer the
securities in question in accordance with the terms of the Transfer Notice. Each
Warrant or share certificate, if any, issued upon or in connection with such
Transfer shall bear the appropriate restrictive legend set forth in Section
5.1(a)
14
or Section 5.1(b), as the case may be, unless, in the opinion of such counsel
and of counsel to the Company, such legend is no longer required to ensure
compliance with the Securities Act.
5.2 Right of First Refusal. In the event that any holder of
Restricted Securities desires to accept an offer (which must be in writing and
for cash, be irrevocable by its terms for at least 60 days and be a bona fide
offer as determined in good faith by the Board or the Executive Committee
thereof) from any prospective purchaser to purchase the Restricted Securities at
any time owned by such holder, such holder shall give notice in writing to the
Company and Clayton, Dubilier & Rice Fund V Limited Partnership (the "CD&R
Fund") (i) designating the Restricted Securities proposed to be sold, (ii)
naming the prospective purchaser of such Restricted Securities and (iii)
specifying the price (the "Offer Price") at and terms (the "Offer Terms") upon
which such holder desires to sell the same. During the 30-day period following
receipt of such notice by the Company and the CD&R Fund (the "First Refusal
Period"), the Company shall have the right to purchase from the holder of such
Restricted Securities no less than all the Restricted Securities specified in
such notice, at the Offer Price and on the Offer Terms. The Company hereby
undertakes to use reasonable efforts to act as promptly as practicable following
receipt of such notice to determine whether it shall elect to exercise such
right. If Company fails to exercise such right within the First Refusal Period,
the CD&R Fund shall have the right to purchase no less than all the Restricted
Securities at the Offer Price and on the Offer Terms, at any time during the
period beginning on the earlier of (x) the end of the First Refusal Period and
(y) the date of receipt by the CD&R Fund of written notice that the Company has
elected not to exercise its rights under this Section 5.2 and ending 30 days
thereafter (the "Second Refusal Period"). The rights provided hereunder shall be
exercised by written notice to the holder of Restricted Securities given at any
time during the applicable period. If such right is exercised, the Company or
the CD&R Fund, as the case may be, shall deliver to the holder of Restricted
Securities a certified or bank check for the Offer Price, payable to the order
of the holder of Restricted Securities, against delivery of the certificates or
other instruments representing the Restricted Securities so purchased,
appropriately endorsed by the holder of Restricted Securities. If such right
shall not have been exercised prior to the expiration of the Second Refusal
Period, then at any time during the 30 days following the expiration of the
Second Refusal Period, the holder of Restricted Securities may sell such
Restricted Securities to (but only to) the intended purchaser named in such
holder's notice to the Company and the CD&R Fund at the Offer Price and on the
Offer Terms specified in such notice, free of all restrictions or obligations
imposed by, and free of any rights or benefits set forth in Section 5 of this
Warrant, provided that such intended purchaser shall have agreed in writing to
make and be bound by representations, warranties and covenants regarding such
purchaser's investment intentions pursuant to an instrument of assumption
satisfactory in substance and form to the Company.
15
5.3. Drag-Along Rights. (a) Drag-Along Notice. If the CD&R Fund intends to
effect a sale of 51% or more of its shares of Common Stock of the Company to a
Third Party Buyer and the CD&R Fund elects to exercise its rights under this
Section 5.3, the CD&R Fund shall deliver written notice (a "Drag-Along Notice")
to the holder of Restricted Securities, which notice shall (a) state (i) that
the CD&R Fund wishes to exercise its rights under this Section 5.3 with respect
to such sale, (ii) the name and address of the Third Party Buyer, (iii) the per
share amount and form of consideration the CD&R Fund proposes to receive for its
shares of Common Stock of the Company (the "Drag-Along Price") and (iv) the
terms and conditions of payment of such consideration and all other material
terms and conditions of such sale, (b) contain an offer (the "Drag-Along Offer")
to the holder of Restricted Securities by the Third Party Buyer to purchase (i)
in the case of a holder of the Warrant, the portion of the Warrant representing
a percentage of Warrant Shares equal to the percentage of the shares of Common
Stock of Company owned by the CD&R Fund that are to be sold to the Third Party
Buyer (the "Applicable Portion") and (ii) in the case of a holder of Warrant
Shares, the percentage of Warrant Shares equal to the percentage of the shares
of Common Stock of the Company owned by the CD&R Fund that are to be sold to the
Third Party Buyer (such percentage, the "Applicable Percentage") at the same
price and on and subject to the same terms and conditions offered to the CD&R
Fund and subject to Sections 5.3(b) and (c) below and (c) state the anticipated
time and place of the closing of the purchase and sale of the Applicable Portion
of the Warrant and the Applicable Percentage of the Warrant Shares (a
"Drag-Along Closing"), which (subject to such terms and conditions) shall occur
not fewer than five (5) days nor more than ninety (90) days after the date such
Drag-Along Notice is delivered, provided that if such Drag-Along Closing shall
not occur prior to the expiration of such 90-day period, the CD&R Fund shall be
entitled to deliver additional Drag-Along Notices with respect to such
Drag-Along Offer.
(b) Conditions to Drag-Along. Upon delivery of a Drag-Along Notice,
each holder of Restricted Securities shall have the obligation and the right to
(i) in the case of a holder of the Warrant and in the event
that the Drag-Along Price is less than or equal to the Exercise
Price, surrender the Warrant to the Company and receive from the
Company (x) a written confirmation of such surrender (and of the
consequent cancellation of the Warrant by the Company) to the Holder
and (y) a new Warrant calling in the aggregate on the face thereof
for the number of shares of Common Stock called for on the face of
the Warrant surrendered and canceled minus the shares of Common
Stock represented by the Applicable Portion of the Warrant,
16
(ii) in the case of a holder of the Warrant and in the event
that the Drag-Along Price exceeds the Exercise Price, transfer and
sell to the Third Party Buyer the Applicable Portion of the Warrant,
and in such case, receive from the Custodian (as defined below) the
total consideration, if any, for the shares represented by the
Applicable Portion of the Warrant, which consideration shall be the
Drag-Along Price reduced by the Exercise Price and multiplied by the
number of Warrant Shares represented by the Applicable Portion of
the Warrant, and thereupon receive from the Company (x) a written
confirmation of such transfer (and the consequent cancellation of
the Applicable Portion of the Warrant by the Company) to the Holder
and (y) a new Warrant calling in the aggregate on the face thereof
for the number of shares of Common Stock called for on the face of
the Warrant prior to the transfer of the Applicable Portion of the
Warrant to the Third Party Buyer minus the number of shares of
Common Stock represented by the Applicable Portion of the Warrant
and
(iii) in the case of a holder of Warrant Shares, transfer and
sell to the Third Party Buyer the Applicable Percentage of its
Warrant Shares and receive from the Custodian the total
consideration for such Warrant Shares
pursuant to the Drag-Along Offer, as the same may be modified from time to time,
provided that the CD&R Fund sells and transfers the Applicable Percentage of its
shares of Common Stock of the Company to the Third Party Buyer at the Drag-Along
Closing at the same price and on the same terms and conditions. Within 10 days
of receipt of the Drag-Along Notice, each holder of Restricted Securities shall
(x) execute and deliver to the CD&R Fund a power of attorney and a letter of
transmittal and custody agreement appointing, and in form and substance
reasonably satisfactory to, the CD&R Fund or one or more of its affiliates
designated by the CD&R Fund (the "Custodian"), the true and lawful
attorney-in-fact and custodian for the holder of Restricted Securities, with
full power of substitution, and authorizing the Custodian to take such actions
as the Custodian may deem necessary or appropriate to effect, as applicable, the
transfer, sale, surrender or cancellation of the Applicable Portion of the
Warrant and the transfer and sale of the Applicable Percentage of the Warrant
Shares to the Third Party Buyer, upon receipt of the purchase price therefor at
the Drag-Along Closing, free and clear of all security interests, liens, claims,
encumbrances, charges, options, restrictions on transfer, other than those
stated on the Warrant or the certificate for Warrant Shares, the proxies and
voting and other agreements of whatever nature, and to take such other action as
may be necessary or appropriate in connection with such sale, transfer,
surrender or cancellation, including consenting to any amendments, waivers,
modifications or supplements to the terms of the sale (provided that the CD&R
Fund also so consents, and, to the extent applicable, sells
17
and transfers the Applicable Percentage of its shares of Common Stock of the
Company on the same terms as so amended, waived, modified or supplemented) and
(y) deliver to the Custodian the Warrant and certificates representing the
Applicable Percentage of the Warrant Shares, together with all necessary duly
executed stock powers, provided that in no event shall any holder of Restricted
Securities be subject to any holdback or indemnification obligations in
connection with such sale without its prior written consent. The Custodian shall
hold the Warrant and the Applicable Percentage of the Warrant Shares and other
documents in trust for each holder of Restricted Securities pending completion
or abandonment of such sale. If, within 90 days after the CD&R Fund delivers the
Drag-Along Notice, the CD&R Fund has not completed the sale of the Applicable
Percentage of its shares of Common Stock of the Company to the Third Party Buyer
and another Drag-Along Notice with respect to such Drag-Along Offer has not been
sent to the holders of Restricted Securities, the Custodian shall return to such
holders of Restricted Securities the Warrant and all certificates representing
such securities and all other documents that such holders delivered in
connection with such sale. Promptly after the Drag-Along Closing, the Custodian
shall give notice thereof to each holder of Restricted Securities and shall
remit to each such holder the total consideration to which he is entitled and
shall furnish such other evidence of the completion and time of the completion
of such sale and the terms thereof as may be reasonably requested by such
holders.
(c) Remedies. Each holder of Restricted Securities acknowledges that
the CD&R Fund would be irreparably damaged in the event of a breach or a
threatened breach by such holder of any of his obligations under this Section
5.3 and each holder of Restricted Securities agrees that, in the event of a
breach or a threatened breach by such holder of any such obligation, the CD&R
Fund shall, in addition to any other rights and remedies available to it in
respect of such breach, be entitled to an injunction from a court of competent
jurisdiction (without any requirement to post bond) granting it specific
performance by such holder of his obligations under this Section 5.3. In the
event that the CD&R Fund shall file suit to enforce the covenants contained in
this Section 5.3 (or obtain any other remedy in respect of any breach thereof),
the prevailing party in the suit shall be entitled to recover, in addition to
all other damages to which it may be entitled, the costs incurred by such party
in conducting the suit, including reasonable attorney's fees and expenses. In
the event that, following a breach or a threatened breach by any holder of
Restricted Securities of the provisions of this Section 5.3, the CD&R Fund does
not obtain an injunction granting it specific performance of the such holder's
obligations under this Section 5.3 in connection with such proposed transfer,
sale, surrender or cancellation prior to the time the CD&R Fund completes the
sale of the Applicable Percentage of its shares of Common Stock of the Company
or, in its sole discretion, abandons such sale, then the Company shall have the
option (i) in the case of a holder of the Warrant, (x) to purchase all
Restricted Securities from such holder at a purchase price per share equal to
the Exercise Price, or (y) if the per share consideration payable pursuant to
the Drag-Along Offer is less than
18
the Exercise Price, to cancel the Warrant whereupon the Company shall send a
written confirmation of such cancellation to the holder, and (ii) in the case of
a holder of Warrant Shares, (x) to purchase all of the Warrant Shares held by
such holder at a purchase price per share equal to the price at which such
holder purchased such shares of Common Stock from the Company or, if less, the
per share consideration, if any, payable for each share pursuant to the
Drag-Along Offer.
5.4. Registration; Restrictions on Sale upon Public Offering. Each
holder of Restricted Securities agrees that, in the event that the Company files
a registration statement under the Securities Act with respect to an
underwritten public offering of any shares of its capital stock, it will not
seek to effect any public sale (including a sale under Rule 144) of the
Restricted Securities or any distribution of the Restricted Securities, other
than as part of such underwritten public offering, during the 20 days prior to
and the 180 days after the effective date of such registration statement.
5.5. Termination of Restrictions. (a) Securities Law Restrictions.
The legend requirements of Sections 5.1(a) and 5.1(b) and the restrictions
imposed by Section 5.1(c) shall terminate as to any Restricted Security (i) when
and so long as the security in question shall have been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering such Restricted Securities, (ii) when, in the opinions of
both counsel for the holder thereof and counsel for the Company, such
restrictions are no longer required in order to insure compliance with the
Securities Act or (iii) when such securities have been beneficially owned, by a
person who has not been an affiliate of the Company for at least three months,
for a period of at least two years, all as determined under Rule 144 under the
Securities Act. Whenever any such restrictions shall terminate as to any Warrant
Shares, as soon as practicable thereafter and in any event within five days, the
holder thereof shall be entitled to receive from the Company and the Company
agrees to issue to such holder, without expense (other than transfer taxes, if
any) and at the request of the holder thereof, new securities of like tenor not
bearing the legend set forth in Section 5.1(b) hereof. Legend requirements set
forth in Sections 5.1(a) and 5.1(b) hereof shall continue in effect with respect
to other transfer restrictions set forth herein and in the Registration and
Participation Agreement for so long as such restrictions remain applicable and
thereafter the Company agrees to reissue securities not bearing any legend.
(b) Other Restrictions. The restrictions set forth in Sections 5.2
and 5.3 shall terminate in the event that a Public Offering has been
consummated. The restrictions set forth in Section 5.4 shall terminate (i) when
and so long as the Restricted Securities shall have been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering such Restricted Securities or (ii) when such Restricted
Securities have been disposed of under Rule 144 under the Securities Act.
19
6. Registration and Participation Rights. The Warrant Shares are
subject to the restrictions set forth in and entitled to the benefits of the
Registration and Participation Agreement, dated as of March 30, 1998, as amended
as of November 19, 1999, between the Company and the CD&R Fund (the
"Registration and Participation Agreement").
7. Availability of Information. The Company shall supply each holder
of Warrant Shares with such information as may reasonably be necessary for such
holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any Warrant Shares.
8. Reservation of Stock, etc. The Company shall at all times reserve
and keep available, solely for issuance and delivery upon exercise of the
Warrant, the number of shares of Common Stock (or Other Securities) from time to
time issuable upon exercise of the Warrant at the time outstanding. All shares
of Common Stock (or Other Securities) shall be duly authorized and, when issued
upon such exercise, shall be validly issued and, in the case of shares, fully
paid and nonassessable.
9. Ownership, Transfer and Substitution of the Warrant. 9.1.
Ownership of Warrant. The Company may treat the Person in whose name the
Warrant, or any Warrant or Warrants issued in substitution therefor, is
registered on the register kept at the principal office of the Company as the
owner and the Holder thereof for all purposes, notwithstanding any notice to the
contrary, except that, if and when any Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as the
owner of such Warrant for all purposes, notwithstanding any notice to the
contrary. Subject to Section 6, a Warrant, if properly assigned, may be
exercised by a new Holder without first having a new Warrant issued.
9.2 Transfer and Exchange of the Warrant. Upon the surrender of the
Warrant, properly endorsed, for registration of transfer or for exchange at the
principal office of the Company, the Company at its expense shall (subject to
compliance with Section 6, if applicable) execute and deliver to or upon the
order of the Holder thereof a new Warrant or Warrants of like tenor, in the name
of such Holder or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or faces
of the Warrant or Warrants so surrendered.
9.3 Division and Combination of the Warrant. Subject to compliance
with Section 6, the Warrant may be divided or combined with other Warrants upon
presentation thereof at the Office of the Company, together with a written
notice specifying the name
20
or names and denomination or denominations in which a new Warrant or Warrants
are to be issued, signed by Holder or by the duly appointed legal representative
thereof. Subject to compliance with Section 6 as to any transfer which may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
9.4 Replacement of the Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant
held by a Person other than the Purchaser, upon delivery of indemnity reasonably
satisfactory to the Company in form and amount or, in the case of any such
mutilation, upon surrender of such Warrant for cancellation at the principal
office of the Company, the Company at its expense shall execute and deliver, in
lieu thereof, a new Warrant of like tenor.
10. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Acquisition Agreement: the meaning specified in the second paragraph
of the Warrant.
Additional Shares of Common Stock: all shares (including treasury
shares) of Common Stock issued or sold by the Company after the Closing Date,
whether or not subsequently reacquired or retired by the Company, other than (i)
shares of Common Stock issued upon the exercise of the Warrant, (ii) shares
issued or sold pursuant to the exercise or conversion of options, warrants, or
convertible securities outstanding as of November 19, 1999 or (iii) shares
issued or sold pursuant to options, warrants or other Convertible Securities
issued or granted under the Company's Employee Stock Purchase Plan after
November 19, 1999, or any successor plan thereto, to the extent such shares are
issued or sold at a purchase price not less than 85% of the Fair Market Value as
of the date any such options, warrants or other Convertible Securities were
issued or granted.
Affiliate: with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
Applicable Percentage: the meaning specified in Section 5.3.
Applicable Portion: the meaning specified in Section 5.3.
Applicable Share Valuation: the annual valuation of the shares of
Common Stock of the Company performed by an independent valuation firm chosen by
the Board
21
of Directors of the Company as of the last day of the last fiscal year ending
prior to the date on which the Board shall make a determination of the Fair
Market Value of the shares of Common Stock of the Company, except that, in the
case of a Board determination occurring during the fourth fiscal quarter of any
fiscal year beginning with the fourth quarter of the 1998 fiscal year, the term
"Applicable Share Valuation" shall mean the annual valuation of the shares of
Common Stock of the Company performed by an independent valuation firm chosen by
the Board as of the last day of such fourth fiscal quarter. Such annual
valuations shall be performed for the 1999 fiscal year and for each fiscal year
ending thereafter and prior to any initial Public Offering as promptly as
practicable following the end of each such fiscal year.
Assets: the meaning specified in Section 2.3.
Beneficially Own: with respect to any securities shall mean having
"beneficial ownership" of such securities (as determined pursuant to Rule 13d-3
under the Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
Business Day: a day other than a Saturday or Sunday or other day on
which commercial banking institutions in the City of New York are authorized by
law to be closed.
CD&R Fund: Clayton, Dubilier & Rice Fund V Limited Partnership, a
Cayman Islands exempted limited partnership (together with any successor
investment vehicle managed by Clayton, Dubilier & Rice, Inc.).
Closing Date: the meaning specified in the second paragraph of the
Warrant.
Commission: the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act or the Exchange Act,
whichever is the relevant statute for the particular purpose.
Common Stock: the Company's Common Stock, as constituted on the date
hereof, any stock into which such Common Stock shall have been changed or any
stock resulting from any reclassification of such Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all or to a
share of the balance of current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference.
22
Company: the meaning specified in the first paragraph of the
Warrant.
Convertible Securities: any evidences of indebtedness, shares of
stock (other than Common Stock) or other securities directly or indirectly
convertible into or exchangeable for Additional Shares of Common Stock.
Drag-Along Closing: the meaning specified in Section 5.3.
Drag-Along Notice: the meaning specified in Section 5.3.
Drag-Along Offer: the meaning specified in Section 5.3.
Drag-Along Price: the meaning specified in Section 5.3.
Exchange Act: the Securities Exchange Act of 1934, as amended, or
any successor Federal statute and the rules and regulations thereunder, which
shall be in effect at the time. Any reference to a particular section of the
Securities Exchange Act of 1934 shall include a reference to the corresponding
section, if any, of any such successor statute.
Exercise Price: the meaning specified in Section 1.1.
Fair Market Value: as of any date, the fair market value on such
date of a share of Common Stock as determined in good faith by the Board. In
making a determination of Fair Market Value, the Board shall give due
consideration to such factors as it deems appropriate, including, without
limitation, the earnings and certain other financial and operating information
of Holding and the Subsidiaries in recent periods, the potential value of
Holding and the Subsidiaries as a whole, the future prospects of Holding and the
Subsidiaries and the industries in which they compete, the history and
management of Holding and the Subsidiaries, the general condition of the
securities markets, the fair market value of securities of companies engaged in
businesses similar to those of Holding and the Subsidiaries and the Applicable
Share Valuation. The determination of Fair Market Value will not give effect to
any restrictions on transfer of the shares of Common Stock or the fact that such
Common Stock would represent a minority interest in Holding. Notwithstanding the
foregoing, following a Public Offering, Fair Market Value shall mean the average
of the high and low trading prices for a share of Common Stock on the primary
national exchange (including NASDAQ) on which the Common Stock is then traded on
the trading day immediately preceding the date as of which such Fair Market
Value is determined.
First Refusal Period: the meaning specified in Section 5.2.
23
Holder: the meaning specified in Section 1.1.
Initial Exercise Shares: the meaning specified in the opening
paragraphs of the Warrant.
NASD: the National Association of Securities Dealers, Inc.
Offer Price: the meaning specified in Section 5.2.
Offer Terms: the meaning specified in Section 5.2.
Other Securities: any stock (other than Common Stock) and other
securities of the Company or any other Person (corporate or otherwise) which the
Holder at any time shall be entitled to receive, or shall have received, upon
the exercise of the Warrant, in lieu of or in addition to Common Stock, or which
at any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or other securities pursuant to Section 2.8 or
otherwise.
Person: an individual, a partnership, a limited liability company,
an association, a joint venture, a corporation, a business, a trust, an
unincorporated organization or a government or any department, agency or
subdivision thereof.
Preferred Stock: the shares of preferred stock of the Company, par
value $.001 per share.
Public Offering: any underwritten public offering of Common Stock
led by one or more underwriters at least one of which is of nationally
recognized standing pursuant to an effective registration statement under the
Securities Act.
Purchaser: the meaning specified in the first paragraph of the
Warrant.
Registration and Participation Agreement: the meaning specified in
Section 6.
Restricted Securities: (i) any Warrants bearing the applicable
legend set forth in Section 5.1(a), (ii) any shares of Common Stock (or Other
Securities) which have been issued upon the exercise of Warrants and which are
evidenced by a certificate or certificates bearing the applicable legend set
forth in Section 5.1(b), and (iii) unless the context otherwise requires, any
shares of Common Stock (or Other Securities) which are at the time issuable upon
the exercise of the Warrants and which, when so issued, shall be
24
evidenced by a certificate or certificates bearing the applicable legend set
forth in Section 5.1(b).
Second Refusal Period: the meaning specified in Section 5.2.
Securities Act: the Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations thereunder, which shall
be in effect at the time. Any reference to a particular section of the
Securities Act of 1933 shall include a reference to the corresponding section,
if any, of any such successor statute.
Subsidiary: as to any Person, any corporation at least a majority of
the shares of stock of which having general voting power under ordinary
circumstances to elect a majority of the Board of Directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency) is, at the time as of which the determination is being made, owned
by such Person, or one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries.
Third Party Buyer: any Person who is not an Affiliate of the CD&R
Fund and who does not own shares of common stock in a company (other than the
Company) in which an investment fund managed by Clayton, Dubilier & Rice, Inc.
has made an investment.
Transaction: the meaning specified in Section 2.8.
Transfer: unless the context otherwise requires, any sale,
assignment, pledge or other disposition of any security, or of any interest
therein, which could constitute a "sale" as that term is defined in Section 2(3)
of the Securities Act.
Transfer Notice: the meaning specified in Section 5.1.
Warrant: the meaning specified in the second paragraph of the
Warrant.
Warrant Price: the meaning specified in Section 2.1.
Warrant Shares: the shares of Common Stock (and Other Securities)
issuable upon exercise of the Warrant.
11. Rights of Holders. Except as otherwise specifically required
herein, holders of unexercised Warrants are not entitled (i) to receive
dividends or other distributions, (ii) to receive notice of or vote at any
meeting of the stockholders of the Company,
25
(iii) to consent to any action of the stockholders of the Company, (iv) to
receive notice of any other proceedings of the Company or (v) to exercise any
other rights as stockholders of the Company.
12. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under the Warrant, except
notices of the exercise of any Warrant (which shall be effected in the manner
provided in Section 1), shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by telecopy or
telegram (with telephone confirmation), as follows:
(a) if to the Purchaser, to it at:
NFC International Holdings (Netherlands II) BV
Overschieseweg 323
3112 NC Schiedam
The Netherlands
Attention: Company Secretary of NFC p/c
(b) if to NFC plc, to it at:
NFC plc
66 Chiltern Street
London WIN 3LT
England
Attention: Company Secretary
With copies to:
Kirkland & Ellis
Citicorp Centre
153 East 53rd Street
New York, NY 10022
Fax: 212-446-4900
Tel: 212-446-4940
Attention: Kirk A. Radke
and
26
Ashurst Morris Crisp
Broadwalk House
5 Appold Street
London England EC2A 2HA
Fax: (44 171) 972-7990
Tel: (44 171) 972-7710
Attention: Geoffrey Green
(c) if to any other Holder or any holder of any Common Stock (or
Other Securities), at the registered address of such Holder as set
forth in the register kept at the principal office of the Company,
(d) if to the Company, to it at:
NA Holding Corporation
c/o North American Van Lines, Inc.
5001 U.S. HWY 30 West
P.O. Box 988
Ft. Wayne, Indiana, 46801-0988
Fax: 219-429-3135
Tel: 219-429-2511
Attention: General Counsel
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Fax: 212-909-6836
Tel: 212-909-6000
Attention: Paul S. Bird
(e) if to the CD&R Fund, to it at:
Clayton, Dubilier & Rice Fund V
Limited Partnership
1403 Foulk Road, Suite 106
Wilmington, Delaware 19803
27
Attention: General Partner
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Fax: 212-909-6836
Tel: 212-909-6000
Attention: Paul S. Bird
13. Amendment. The Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
14. Successors and Assigns. All agreements of the Company and the
Purchaser in this Warrant shall bind each of their respective successors and
assigns.
15. Third Party Beneficiary. It is expressly agreed that the CD&R
Fund is a third party beneficiary of Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 6.
16. Miscellaneous. The section headings in the Warrant are for
purposes of convenience only and shall not constitute a part hereof. THE WARRANT
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF
CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
28
NA Holding Corporation
By: /s/R. Barry Uber
--------------------------------------------
Name: R. Barry Uber
Title: President and Chief Executive Officer
FORM OF SUBSCRIPTION
(To be executed only upon exercise of Warrant)
To: NA Holding Corporation
The undersigned registered holder of the within Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder, ________*
shares of Common Stock of NA Holding Corporation, and herewith makes payment [of
$ ]** [by application, pursuant to Section 1.1(b) of such Warrant, of [a portion
of] the Warrant representing a right to purchase ________* shares of Common
Stock],*** and requests that the certificates for such shares be issued in the
name of, and delivered to ______________ whose address is __________.
Dated: ______________
NFC International Holdings
(Netherlands II) BV****
[Address]
By __________________________
Name:
* Title:
- ----------
* Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be delivered upon exercise. In the case of
a partial exercise, a new Warrant or Warrants shall be issued and
delivered, representing the unexercised portion of the Warrant, to the
holder surrendering the same.
** Delete inapplicable language in brackets.
*** Delete inapplicable language in brackets.
**** Signature must conform in all respects to name of holder as specified on
the face of the Warrant.
FORM OF ASSIGNMENT
(To be executed only upon transfer of Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ________________ the right
represented by such Warrant to purchase ______ shares of Common Stock of NA
Holding Corporation to which such Warrant relates, and appoints ___________
Attorney to make such transfer on the books of NA Holding Corporation maintained
for such purpose, with full power of substitution in the premises.
Dated: ______________
NFC International Holdings
(Netherlands II) BV*
[Address]
By /s/
-----------------------------
Name:
Title:
Signed in the presence of:
- --------------------------
- ----------
* Signature must conform in all respects to name of holder as specified on
the face of the Warrant.