Warrant
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING
SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT SUCH EXEMPTION FROM
REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A SHAREHOLDERS AGREEMENT DATED AS OF JUNE 6, 2002. THE
SHAREHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS, SIGNIFICANT
RESTRICTIONS ON TRANSFER OF THE SECURITIES OF THE ISSUER. A COPY OF THE
SHAREHOLDERS AGREEMENT IS AVAILABLE UPON REQUEST FROM THE ISSUER.
TRIMAS CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 001 750,000 Shares
FOR VALUE RECEIVED, TRIMAS CORPORATION (the "ISSUER"), a Delaware
corporation, hereby certifies that Metaldyne Corporation or its registered
assigns (the "HOLDER") is entitled, subject to the provisions of this Warrant
(this "WARRANT"), to purchase from the Issuer, at any time or from time to time
prior to the expiration date, as hereinafter defined, an aggregate of seven
hundred fifty thousand (750,000) fully paid and nonassessable shares of Common
Stock subject to adjustment as provided for herein at a purchase price per share
equal to the Exercise Price. The number of Warrant Shares to be received upon
the exercise of this Warrant and the Exercise Price are subject to adjustment
from time to time as hereinafter set forth. This Warrant is issued as a dividend
in connection with a Stock Purchase Agreement dated as of May 17, 2002 among,
inter alia, the Issuer, Heartland Industrial Partners, L.P. and its affiliates
(collectively, "Heartland") and Metaldyne Corporation (as amended from time to
time, the "PURCHASE AGREEMENT").
Section 1. Definitions. The following terms have the following
meanings:
"COMMON STOCK" means the authorized Common Stock, par value $0.01 per
share, of the Issuer, and any stock into which such Common Stock may thereafter
be converted or changed.
"CURRENT MARKET PRICE" per share of Common Stock means on any record
date the average of the current market value, determined as set forth below, of
a share of Common Stock for the 20 trading days prior to the date in question.
(i) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such an exchange, the current
market value shall be the last reported sale price of a share of Common
Stock on such exchange on such trading day or if no such sale is made on
such day, the mean of the closing bid and asked prices for such day on such
exchange; or
(ii) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the last
bid and asked prices for a share of common stock reported on such trading
day (A) by the Nasdaq Stock Market or (B) if reports are unavailable under
clause (A) above by the National Quotation Bureau Incorporated; or
(iii) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current market value shall be such value as is determined in good faith by
the Board of Directors of the Issuer, which determination shall be
conclusive.
"EXERCISE PRICE" means an amount equal to $0.01 per share of Common
Stock, as adjusted from time to time according to the terms hereof.
"EXPIRATION DATE" means the tenth (10th) anniversary of the Original
Issue Date.
"ORIGINAL ISSUE DATE" means June 6, 2002, the date on which this
Warrant was issued by the Issuer pursuant to the Stock Purchase Agreement.
"WARRANT SHARES" means the shares of Common Stock and any other
securities or property issuable or deliverable upon exercise of this Warrant, as
adjusted from time to time.
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Section 2. Exercise of Warrant. This Warrant may be exercised in whole
or in part, at any time or from time to time, from and after the Original Issue
Date and at any time before 5:00 P.M., New York time, on the Expiration Date, by
presentation and surrender hereof to the Issuer at its principal office at the
address set forth on the signature page hereof (or at such other address as the
Issuer may hereafter notify the Holder in writing), or at the office of its
stock transfer agent or warrant agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by proper payment of that portion of the
Exercise Price represented by the number of shares of Common Stock specified in
such Purchase Form for which the Warrant is being exercised. Such payment may be
made, at the option of the Holder, by cash, certified or bank cashier's check or
wire transfer in an amount equal to the product of (i) the Exercise Price times
(ii) the number of shares of Common Stock as to which this Warrant is being
exercised. If this Warrant should be exercised in part only, the Issuer shall,
upon surrender of this Warrant, execute and deliver at the time of delivery of
the certificate or certificates representing the Warrant Shares being issued a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the Warrant Shares purchasable hereunder. Upon receipt by the Issuer of this
Warrant and the Purchase Form annexed hereto, together with the applicable
portion of the Exercise Price, at such office, in proper form for exercise
during the Exercise Period, the Holder shall be deemed to be the holder of
record of the Warrant Shares, notwithstanding that the stock transfer books of
the Issuer shall then be closed or that certificates representing such Warrant
Shares shall not then be actually delivered to the Holder. The Issuer shall pay
any and all documentary stamp or similar issue taxes payable in respect of the
issue of the Warrant Shares. The Issuer shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
or delivery of certificates representing Warrants or Warrant Shares in a name
other than that of the Holder at the time of surrender for exercise, and, until
the payment of such tax, shall not be required to issue such Warrant Shares.
Section 3. Due Authorization; Reservation of Shares. (a) The Issuer
represents and warrants that this Warrant has been duly authorized, executed and
delivered by the Issuer and is a valid and binding agreement of the Issuer and
entitles the Holder hereof or its assignees to purchase Warrant Shares upon
payment to the Issuer of the Exercise Price applicable to such shares. The
Issuer hereby agrees that at all times there shall be reserved for issuance and
delivery upon exercise of this Warrant all shares of its Common Stock or other
shares of capital stock of the Issuer from time to time issuable upon exercise
of this Warrant. All such shares shall be duly authorized and, when issued upon
such exercise and paid for, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights.
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(b) Assuming the veracity of the Holder's representations in Section
10(a) hereof, as applicable, the Issuer represents and warrants that the
execution and delivery by it of this Warrant do not require any action by or in
respect of the Issuer (other than those that have been taken) or filing with any
governmental body, agency or official and do not contravene or constitute a
default under or violation of (i) any provision of applicable law or regulation,
(ii) the certificate of incorporation or bylaws of the Issuer, or (iii) any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Issuer.
Section 4. Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Issuer shall pay to the Holder an amount in cash equal to such
fraction multiplied by the Current Market Price of such fractional share or may,
at the Issuer's sole option, round up the number of shares to the nearest whole
number.
Section 5. Exchange, Transfer, Assignment or Loss of Warrant. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Issuer for other Warrants of different
denominations, entitling the Holder or Holders thereof to purchase in the
aggregate the same number of Warrant Shares. Subject to all applicable
provisions of the Shareholders Agreement dated as of June 6, 2002 by and among
Trimas Corporation, Metaldyne Company LLC, the Heartland Entities Listed on the
signature pages thereto and the other shareholders named therein or added as
parties therein from time to time (the "Shareholders Agreement"), the Holder
shall be entitled to assign its interest in this Warrant in whole or in part,
without charge to the Holder hereof, to any person or persons. Upon surrender of
this Warrant to the Issuer, with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Issuer shall, without
charge, execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees named in such instrument of assignment and, if the
Holder's entire interest is not being assigned, in the name of the Holder, and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants that carry the same rights upon presentation hereof at the
office of the Issuer, together with a written notice specifying the names and
denotations in which new Warrants are to be issued and signed by the Holder
hereof. Upon receipt by the Issuer of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Issuer shall at
its expense execute and deliver a new Warrant of like tenor and date.
Section 6. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Issuer, either at law
or equity, and the rights of the
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Holder are limited to those expressed in this Warrant; provided, however, that
the Holder shall be entitled to receive all Distribution Rights (as hereinafter
defined) in respect of Common Stock as though this Warrant had been exercised.
Section 7. Anti-dilution Provisions and Other Adjustments. The number
of Warrant Shares issuable upon the exercise hereof and the Exercise Price
therefor shall be subject to change or adjustment as follows:
(a) Stock Dividends, Splits, Combinations, Reclassifications, etc. If
the Issuer at any time (i) shall declare a dividend or make a distribution
on its Common Stock payable in shares of its capital stock (whether shares
of Common Stock or of capital stock of any other class), (ii) shall
subdivide shares of its Common Stock into a greater number of shares, (iii)
shall combine or have combined its outstanding Common Stock into a smaller
number of shares or (iv) shall issue by reclassification of its Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Issuer is the continuing corporation)
other securities of the Issuer, the Holder shall be entitled to purchase
the aggregate number and kind of shares of capital stock and other
securities which, if the Warrant had been exercised immediately prior to
such event, the Holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, distribution, subdivision,
combination or reclassification. In such cases the Exercise Price shall be
adjusted equitably. Such adjustment, shall be made successively whenever
any event listed above shall occur.
(b) Stock Other Than Common Stock. In the event that at any time, as a
result of an adjustment made pursuant to subsection (a) of this Section 7,
the Holder shall become entitled to receive any shares of the capital stock
of the Issuer other than Common Stock, thereafter the number of such other
shares so receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Common Stock contained
in this Section 7, and the provisions of this Warrant with respect to the
Common Stock shall apply on like terms to any such other shares.
(c) Common Stock Defined. Whenever reference is made in this Section 7
to the issue of shares of Common Stock, the term "Common Stock" shall
include any equity securities of any class of the Issuer hereafter
authorized which shall not be limited to a fixed or determinable amount in
respect of the right of the holders thereof to participate in dividends or
distributions of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Issuer. However, subject to the
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provisions of Section 9 hereof, shares issuable upon exercise hereof shall
include only Warrant Shares as of the date hereof or shares of any class or
classes resulting from any reclassification or reclassifications thereof or
as a result of any corporate reorganization as provided for in Section 9
hereof.
(d) Other The following provisions shall be applicable to the making of
adjustments provided above:
(i) The adjustments required by the preceding paragraphs of this
Section 7 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except as expressly provided
herein. 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.
(ii) In computing adjustments under this Section 7, fractional
interests in Common Stock shall be taken into account to the nearest
one-thousandth (.001) of a share and shall be aggregated until they
equal one whole share.
(iii) If the Issuer shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive any item
described in Sections 7(a) through 7(c) hereof, but abandon its plan to
pay or deliver such item, 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.
Section 8. Officers' Certificate. Whenever the number of Warrant Shares
purchasable hereunder shall be adjusted as required by the provisions of Section
7, the Issuer at its expense shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal office an officers'
certificate showing the adjusted number of Warrant Shares purchasable hereunder
and Exercise Price determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officers' certificate shall be signed by the chairman,
president or chief financial officer of the Issuer and by the secretary or any
assistant secretary of the Issuer. Absent manifest error, the officers'
certificate shall be conclusive evidence that the adjustment is correct. Each
such officers' certificate shall be made available at all reasonable times for
inspection by the Holder and the Issuer shall, forthwith after each such
adjustment, mail a copy, by certified mail, of such certificate to the Holder or
any such Holder.
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Section 9. Reclassification, Reorganization, Consolidation or Merger.
(a) In case of any Reorganization Transaction (as hereinafter defined), the
Issuer shall, as a condition precedent to such transaction, cause effective
provisions to be made so that the Holder shall have the right thereafter, by
exercising this Warrant, to purchase the kind and highest amount of shares of
stock and other securities and property receivable upon such Reorganization
Transaction by a holder of the number of shares of Common Stock that would have
been received upon exercise of this Warrant immediately prior to such
Reorganization Transaction. Any such provision shall include provision for
adjustments in respect of such shares of stock and other securities and property
that shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. The foregoing provisions of this Section 9 shall
similarly apply to successive Reorganization Transactions. For purposes of this
Section 9, "Reorganization Transaction" shall mean (excluding any transaction
covered by Section 7) any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Issuer (other than a
subdivision or combination of the outstanding Common Stock and other than a
change in the par value of the Common Stock) or any consolidation or merger of
the Issuer with or into another corporation (other than a merger with a
subsidiary in which merger the Issuer is the continuing corporation and that
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or any sale, lease, transfer or conveyance to another corporation
of all or substantially all of the assets of the Issuer.
(b) Notwithstanding anything contained in this Warrant to the contrary,
the Issuer shall not effect any Reorganization Transaction unless, in connection
with the consummation thereof, each Person (other than the Issuer) which may be
required to deliver any stock, securities or property upon the exercise of this
Warrant as provided herein shall assume, by written instrument delivered to the
Holder, (a) the obligations of the Issuer under this Warrant, (b) the
obligations of the Issuer under the Shareholders Agreement and (c) the
obligation to deliver to the Holder such shares of stock, securities or property
as, in accordance with the foregoing provisions of this Section 9, the Holder
may be entitled to receive.
Section 10. Transfer Restrictions. (a) Compliance with Securities Act.
The Holder, by acceptance hereof, agrees that this Warrant and the Warrant
Shares to be issued upon exercise hereof are being acquired for investment and
that such Holder will not offer, sell or otherwise dispose of this Warrant or
any Warrant Shares except under circumstances which will not result in a
violation of the Securities Act or any applicable state securities laws. Upon
exercise of this Warrant, unless the Warrant Shares being acquired are
registered under the Securities Act and any applicable state securities laws or
an exemption from such
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registration is available, the Holder hereof shall confirm in writing that the
Warrant Shares so purchased are being acquired for investment and not with a
view toward distribution or resale in violation of the Securities Act and shall
confirm such other matters related thereto as may be reasonably requested by the
Issuer. This Warrant and all Warrant Shares issued upon exercise of this Warrant
(unless registered under the Securities Act and any applicable state securities
laws) shall be stamped or imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE UNITED
STATES SECURITIES ACT OF 1933 OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING
SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT SUCH EXEMPTION FROM
REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A SHAREHOLDERS AGREEMENT DATED AS OF JUNE 6, 2002. THE
SHAREHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS, SIGNIFICANT
RESTRICTIONS ON TRANSFER OF THE SECURITIES OF THE ISSUER. A COPY OF THE
SHAREHOLDERS AGREEMENT IS AVAILABLE UPON REQUEST FROM THE ISSUER."
Said legend shall be removed by the Issuer, upon the request of the
Holder, at such time as the restrictions on the transfer of the applicable
security shall have terminated.
(b) Disposition of Warrant or Warrant Shares. With respect to any
offer, sale or other disposition of this Warrant or any Warrant Shares acquired
pursuant to the exercise of this Warrant prior to registration of such Warrant
or Warrant Shares, the Holder hereof agrees to comply with all of the applicable
provisions of the Shareholders Agreement. Each certificate representing this
Warrant or Warrant Shares thus transferred (except a transfer pursuant to Rule
144) shall bear a legend as to the applicable Securities law restrictions on
transferability in order to ensure compliance with such laws, unless in the
aforesaid opinion of counsel for Holder, such legend is not required in order to
ensure compliance with such laws.
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The Issuer may issue stop transfer instructions to its transfer agent in
connection with such restrictions.
Section 11. Dilution Fee. (a) In the event that any dividends are
declared or paid or any other distribution is made on or with respect to the
Common Stock, the Holder of this Warrant as of the record date established by
the Board of Directors of the Issuer for such dividend or distribution on the
Common Stock shall be entitled to receive a fee (the "Dilution Fee") in an
amount (whether in the form of cash, securities or other property) equal to the
amount (and in the form) of the dividends or distribution that such Holder would
have received had the Warrant been exercised as of the date immediately prior to
the record date for such dividend or distribution, such Dilution Fee to be
payable on the same payment date established by the Board of Directors of the
Issuer for the payment of such dividend or distribution; provided, however, that
if the Issuer declares and pays a dividend or distribution on the Common Stock
consisting in whole or in part of Common Stock, then no such Dilution Fee shall
be payable in respect of this Warrant on account of the portion of such dividend
or distribution on the Common Stock payable in Common Stock and in lieu thereof
the adjustment in Section 7 hereof shall apply. The record date for any such
Dilution Fee shall be the record date for the applicable dividend or
distribution on the Common Stock, and any such Dilution Fee shall be payable to
the Persons in whose name this Warrant is registered at the close of business on
the applicable record date.
(b) No dividend shall be paid or declared on any share of Common Stock
(other than dividends payable in Common Stock for which an adjustment was made
pursuant to Section 4 hereof), unless the Dilution Fee, payable in the same
consideration and manner, is simultaneously paid or provided for, as the case
may be, in respect of this Warrant in an amount determined as set forth above.
For purposes hereof, the term "dividends" shall include any pro rata
distribution by the Company, out of funds of the Company legally available
therefor, of cash, property, securities (including, but not limited to, rights,
warrants or options) or other property or assets to the holders of the Common
Stock, whether or not paid out of capital, surplus or earnings other than
liquidation.
(c) Prior to declaring any dividend or making any distribution on or
with respect to shares of Common Stock, the Company shall take all prior
corporate action necessary to authorize the issuance of any securities payable
as the Dilution Fee in respect of this Warrant.
Section 12. Governing Law. This Warrant shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of
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Delaware, excluding choice-of-law principles of the law of such state that would
require the application of the laws of a jurisdiction other than such state.
Section 13. Taxes. For all tax purposes, the Issuer and Holder shall
treat this Warrant as the shares of Common Stock issuable upon exercise of this
Warrant and not as an instrument separate therefrom.
Section 14. No Impairment; Regulatory Compliance and Cooperation. The
Issuer shall not by any action, including, without limitation, amending its
charter documents or through any reorganization, reclassification, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other similar voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of the Holder
against impairment. Without limiting the generality of the foregoing, the Issuer
shall take all such action as may be necessary or appropriate in order that the
Issuer may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, free and clear of all liens,
security interests, charges and other encumbrances or restrictions on sale and
free and clear of all preemptive rights and shall use its best efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Issuer to perform
its obligations under this Warrant.
Section 15. Successors and Assigns. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Issuer and the permitted successors and assigns of the Holder
hereof. The provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and to the extent applicable, all
Holders of Warrant Shares issued upon the exercise hereof (including
transferees), and shall be enforceable by any such Holder.
Section 16. Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
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IN WITNESS WHEREOF, the Issuer has duly caused this Warrant to be
executed by and attested by one of its duly authorized officers and to be dated
as of June 6, 2002.
TRIMAS CORPORATION
By: /s/ Grant Beard
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Name: Grant H. Beard
Title: CEO/President
Address: 39400 Woodward Ave.,
Suite 130
Bloomfield Hills, MI 48304
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PURCHASE FORM
Dated _________, __
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ shares of Common Stock and hereby
makes payment of _____ in payment of the exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
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(please typewrite or print in block letters)
Address
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Signature
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ASSIGNMENT FORM
FOR VALUE RECEIVED, _____________________________________ hereby sells, assigns
and transfers unto
Name
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(please typewrite or print in block letters)
Address
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its right to purchase _____ shares of
Common Stock represented by this
Warrant and does hereby irrevocably
constitute and appoint ___________
Attorney, to transfer the same on the
books of the Issuer, with full power of
substitution in the premises.
Date _______, ____
Signature ________________________
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