EXHIBIT (10)-2
THE FORSCHNER GROUP, INC.
Warrant to Purchase Shares
Warrant granted as of December 13, 1995, (hereinafter
referred to as the "Date of Grant") by THE FORSCHNER GROUP, INC.
(the "Corporation") to J. Merrick Taggart (the "Grantee"):
1. The Warrant.
(a) For value received, the Corporation hereby
grants to the Grantee, effective on the Date of Grant, a warrant (the "Warrant")
to purchase, on the terms and conditions herein set forth, up to 100,000 shares
of the Corporation's fully paid, nonassessable shares of Common Stock, par value
$.10 per share, (the "Shares"), at the exercise price set forth above.
(b) The Warrant is granted pursuant to the
agreement of the Corporation in connection with Grantee's acceptance of
employment by the Corporation, which arrangement was ratified by the Board of
Directors of the Corporation at a meeting held on December 13, 1995.
2. The Purchase Price. The purchase price of the Shares shall be
$12.50 per share, which price is no less than the fair market value of the
Shares as of the date of grant.
3. Exercise of Warrant.
(a) Except as otherwise provided in this
Agreement, the Warrant is exercisable over a period of ten years from the Date
of Grant (the "Warrant Period") in accordance with the following schedule:
Percent of Shares Subject
Date to Warrant Purchasable
---- -------------------------
From the Date of Grant to the
first anniversary. 25%
From the first anniversary of
the Date of Grant to the second
anniversary. 50%
From the second anniversary of
the Date of Grant to the third
anniversary. 75%
From the third anniversary of
the Date of Grant to the tenth
anniversary. 100%
The Warrant may be exercised from time to time during the Warrant Period as to
the total number of Shares allowable under this Section 3(a), or any lesser
amount thereof, provided that if this Warrant is exercisable as to 100 or more
shares, then this Warrant may not be exercised for fewer than 100 shares at any
one time, and if this Warrant is exercisable as to fewer than 100 shares, then
this Warrant may not be exercised to purchase fewer than all of such shares.
(b) Not less than fifteen calendar days nor more
than thirty calendar days prior to the date upon which all or any
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portion of the Warrant is to be exercised, the person entitled to exercise the
Warrant shall deliver to the Corporation written notice (the "Notice") of his
election to exercise all or a part of the Warrant, which Notice shall specify
the date for the exercise of the Warrant and the number of Shares in respect of
which the Warrant is to be exercised. The date specified in the Notice shall be
a business day of the Corporation.
(c) On the date specified in the Notice, the
person entitled to exercise the Warrant shall pay to the Corporation the Warrant
Price of the Shares in respect of which the Warrant is exercised and the amount
of any Federal and state withholding taxes (the "Purchase Price"). The Purchase
Price shall be paid in full at the time of purchase, in cash or by check or with
stock of the Corporation owned by the Grantee for at least six months prior to
the date specified in the Notice, the value of which shall be determined in
accordance with the Corporation's 1994 Stock Option Plan (the "Plan"). If the
Warrant is exercised in accordance with the provisions of this Agreement, the
Corporation shall deliver to such person certificates representing the number of
Shares or other securities in respect of which the Warrant is being exercised,
which Shares or other securities shall be registered in his name.
(d) The Grantee acknowledges that the right of
the Grantee to exercise the Warrant shall terminate six months
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after the first date after issuance of the Warrant on which the Grantee shall
for any reason whatsoever (except for the death of the Grantee) cease to be an
employee of the Corporation or any of its Subsidiaries (as defined in the Plan)
(such first date on which the Grantee shall cease to be an employee being
referred to as the "Vesting Termination Date"), and that during such six month
period, Grantee shall have the right to exercise the Warrant only to the extent
that such right had accrued on the Vesting Termination Date; provided, however,
that in the event of the death of the Grantee, the right to exercise the Warrant
shall terminate at the time set forth in paragraph (b) of Section 7 hereof, and
provided further that this Warrant is not in any event exercisable after the
tenth anniversary of the Date of Grant. The Grantee and the Corporation
acknowledge that neither this Agreement nor the existence of the Warrant shall
directly or indirectly give rise to any obligation on the part of the Grantee or
the Corporation in respect of the continued employment of the Grantee nor confer
upon the Grantee any of the rights of a shareholder, including, without
limitation, the right to inquire with the management of the Corporation and to
examine the books and records of the Corporation.
(e) Notwithstanding the provisions of subsection
(a) of this Section 3, in the event of the dissolution, liquidation, merger or
consolidation of the Corporation, with or into, or the sale of all or
substantially all of its assets to a
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corporation not controlled by the Corporation immediately prior to such
transaction, during the term hereof, the Warrant shall become immediately
exercisable at the election of the Grantee as to all or any part of the Shares
not theretofore issued and sold hereunder. The Corporation shall provide the
Grantee with at least 30 calendar days notice of the consummation of any of the
events referred to in the preceding sentence, during which period the Grantee
may so exercise the Warrant. In such event, if the Warrant is not exercised
prior to the occurrence of such event, the unexercised portion of the Warrant
shall terminate upon the happening of such occurrence. In the event that there
shall occur a transaction, other than a merger or sale of assets described
above, which, in the judgment of the Stock Option and Compensation Committee of
the Corporation shall make it impossible or impracticable to carry out the
purposes of this Agreement, alternative provisions shall be made so as nearly as
possible to carry out the purposes of this Agreement, and this Agreement shall
be deemed to have been amended to conform to such provisions.
(f) For purposes hereof, the terms "control" and
"controlled" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.
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4. Securities Law Matters and Transfer of Shares.
(a) The Grantee represents and warrants that he
is acquiring this Warrant and, in the event this Warrant is exercised, the
Shares, for investment, for his own account and not with a view to the
distribution thereof, and that the Grantee has no present intention of disposing
of this Warrant or the Shares or any interest therein or sharing ownership
thereof with any other person or entity.
(b) The Grantee agrees that at the time of his
exercise of the Warrant, he will furnish to the Corporation evidence, upon
request, satisfactory to the Corporation, that he is an accredited investor as
that term is defined in Rule 501 of the Regulations pursuant to the Securities
Act of 1933, as amended, (the "Act"), or a reasoned opinion of counsel in form
and content satisfactory to the Corporation to the effect that the exercise of
the Warrant by the Grantee does not violate any provision of the Act.
(c) Any person acquiring Shares pursuant to
bequest or inheritance shall, as a condition of acquiring the same, execute a
document satisfactory to the Corporation agreeing to be bound by all of the
restrictions of this Agreement to the full extent that such restrictions would
have applied to the Grantee.
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(d) The Grantee agrees that regardless of
compliance with the other provisions of this Section 4, he will not at any time
offer, sell, hypothecate, or otherwise transfer any of the Shares unless either:
(i) A registration statement covering the Shares which are
to be so offered (and their sale by the transferor thereof) has
been filed with the Securities and Exchange Commission pursuant
to the Act and such sale, transfer or other disposition is
accompanied by a prospectus relating to a registration statement
which is in effect under the Act covering the Shares which are to
be sold, transferred or otherwise disposed of and meeting the
requirements of Section 10 of the Act; or
(ii) Counsel satisfactory to the Corporation renders a
reasoned opinion in writing and addressed to the Corporation,
satisfactory in form and substance to the Corporation and its
counsel, that in the opinion of such counsel such proposed sale,
offer, transfer or other disposition of the Shares is exempt from
the provisions of Section 5 of the Act in view of the
circumstances of such proposed offer, sale, transfer or other
disposition.
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(e) The Grantee acknowledges that (i) the Shares
and the Warrant constitute "securities" under the Act and/or the Securities
Exchange Act of 1934, as amended, and/or the Rules and Regulations promulgated
under said Acts; (ii) the Shares may be required to be held indefinitely unless
subsequently registered under the Act for sale by the transferee or an exemption
from such registration is available; and (iii) the Corporation is not under any
obligation with respect to the registration of the Shares.
(f) The certificate or certificates representing
the Shares may have an appropriate legend referring to the restrictions upon
transfers set forth herein.
(g) The Grantee acknowledges that, in the event
of termination of his employment with the Corporation, his rights to exercise
the Warrant are restricted as set forth in this Agreement.
(h) The Grantee is advised that the Grantee or
the Grantee's legal representative, as the case may be, may be required to make
an appropriate representation at the time of any exercise of this Warrant in
form and substance similar to the representations contained herein, relating to
the Shares then being purchased.
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5. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of any successor or
assign of the Corporation and, to the extent herein provided,
shall be binding upon and inure to the benefit of the Grantee's
legal representatives.
6. Adjustment of Warrants.
(a) The number of Shares issuable upon exercise
of this Warrant, or the amount and kind of other securities issuable in addition
thereto or in lieu thereof upon the occurrence of the events specified in
Section 8 of the Plan, shall be determined and subject to adjustment, as the
case may be, in accordance with the procedures therein specified.
(b) Fractional shares resulting from any
adjustment in the Warrant pursuant to this section may be settled in cash or
otherwise as the Committee shall determine. Notice of any adjustment shall be
given by the Corporation to Grantee, and such adjustment (whether or not such
notice is given) shall be effective and binding for all purposes of this
Agreement.
7. Exercise and Transferability of Warrant.
(a) During the lifetime of the Grantee, this Warrant is
exercisable only by the Grantee and shall not be
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assignable or transferable by the Grantee, and no other person shall acquire any
rights therein.
(b) If the Grantee shall die during the Warrant
Period while in the employ of the Corporation or any of its Subsidiaries as
defined in the Plan and shall not have fully exercised the Warrant, the Warrant
may be exercised, to the extent that the Grantee's right to exercise the Warrant
had accrued at the time of his death and had not been previously exercised, by
the executor(s) or administrator(s) of the Grantee or by any person(s) who shall
have acquired the Warrant directly from the Grantee by bequest or inheritance,
provided that the executor(s), administrator(s), or any person(s) acquiring the
Warrant by bequest or inheritance agrees to all the provisions of this
Agreement, but only prior to the first to occur of (i) the expiration of the
Warrant Period or (ii) the expiration of the period of one year after the date
of the Grantee's death.
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If the foregoing is in accordance with the Grantee's
understanding and approved by him, he may so confirm by signing and returning
the duplicate of this Agreement delivered for that purpose.
THE FORSCHNER GROUP, INC.
By /s/ Thomas D. Cunningham
--------------------------
The foregoing is in accordance with my understanding and is hereby confirmed and
agreed to as of the Date of Grant.
/s/ J. Merrick Taggart
--------------------------
J. Merrick Taggart
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