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Exhibit 4
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of June 28, 2000 between Enesco Group,
Inc., a Massachusetts corporation (the "Company"), and Time Warner Entertainment
Company, L.P. (hereinafter referred to as "Warner Brothers").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue to Warner Brothers warrants (the
"Warrants") to purchase up to 200,000 (as such number may be adjusted from time
to time pursuant to Article 7 of this Agreement) shares (the "Shares") of common
stock, par value $.125 per share (the "Common Stock"), of the Company; and
WHEREAS, Warner Brothers and the Company have entered into a License
Agreement (the "License Agreement") dated June 28, 2000 pursuant to which Warner
Brothers has licensed to the Company certain rights to use the trademarks and
related intellectual property relating to "Harry Potter" books and movies, among
other things, as more fully described in the License Agreement;
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant.
Warner Brothers and/or its designees are hereby granted the right to
purchase, pursuant to the terms and conditions of this Warrant
Agreement, at any time from June 28, 2000 until 5:00 p.m., Chicago
time, on June 27, 2005, which date may be extended as set forth in
Section 11 (the "Warrant Exercise Term"), up to 200,000 fully-paid and
non-assessable Shares at an initial exercise price (subject to
adjustment as provided in Article 7 hereof) of $4.375 per Share.
2. Warrant Certificates.
The warrant certificates delivered and to be delivered pursuant to this
Agreement (the "Warrant Certificates") shall be in the form set forth
in Exhibit A attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement.
3. Exercise of Warrant.
3.1. Vesting and Exercise. The Warrants granted herein shall
vest in Warner Brothers and shall become exercisable immediately on the
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issuance of this Warrant Agreement. The Warrants initially are
exercisable at a price of $4.375 per Share, and either (a) payable by
wire transfer in immediately available funds to the Company, or (b) at
the election of Holder, as provided for in Section 3.2, subject to
adjustment as provided in Article 7 hereof. Upon surrender of the
Warrant Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter
defined) for the Shares purchased or exercise of the Cashless Exercise
option (as hereafter defined), at the Company's principal offices
(currently located at 225 Windsor Drive, Itasca, Illinois 60143) the
registered holder of a Warrant Certificate ("Holder" or "Holders")
shall be entitled to receive a certificate or certificates for the
Shares so purchased. The purchase rights represented by each warrant
Certificate are exercisable at the option of the Holder thereof, in
whole or in part (but not as to fractional Shares). In the case of the
purchase of less than all the Shares purchasable under any Warrant
Certificate, the Company shall cancel said Warrant Certificate upon
the surrender thereof and shall execute and deliver a new Warrant
Certificate of like tenor for the balance of the Shares purchasable
thereunder.
3.2. Cashless Exercise. The Holder may, at its election,
exercise its right to receive shares of Common Stock on a net basis
such that, without the exchange of any funds and upon surrender of
this Warrant, the Holder receives shares of Common Stock equal to the
value (as determined below) of this Warrant by surrender of this
Warrant to the Company at its principal offices together with notice
of such election, in which event the Company shall issue to the Holder
a number of shares of Common Stock computed using the following
formula:
X = Y(A-B)
------
A
Where:
X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock then subject to
this Warrant
A = the market price of a share of Common Stock for
the date of exercise (the market price determined, for any date, as the
average of the closing prices of the Common Stock on the New York Stock
Exchange (or such other principal securities exchange or automated
quotation system upon which the Common Stock may then be listed for
public trading) for the five immediately preceding trading days on such
exchange)
B = the then current Stock Purchase Price
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4. Issuance of Certificates.
(a) Upon the exercise of the Warrants, the issuance of
certificates for the Shares purchased shall be made forthwith without
charge to the Holder thereof including, without limitation, any excise
or transfer tax which may be payable in respect of the issuance
thereof, and such certificates shall (subject to the provisions of
Article 5 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Company
shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the
Shares shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future Chairman or Vice
Chairman of the Board of Directors, Chief Executive Officer or
President or Vice President of the Company under its corporate seal
reproduced thereon, attested to by the manual or facsimile signature
of the present or any future Secretary or Assistant Secretary of the
company, or in such other manner as is then authorized for the
Company. Warrant Certificates shall be dated the date of execution by
the Company upon initial issuance, division, exchange, substitution or
transfer.
Upon exercise, in part or in whole, of the Warrants, certificates
representing the Shares shall bear a legend (which legend shall be
removed by the Company pursuant to Section 6.3(b)) substantially
similar to the following:
"The securities represented by this certificate have not been
registered for purposes of public distribution under the
Securities act of 1933, as amended (the "Act"), and may not be
offered or sold except (i) pursuant to an effective
registration statement under the Act, (ii) to the extent
applicable, pursuant to Rule 144 under the Act (or any similar
rule under such Act relating to the disposition of
securities), or (iii) upon the delivery by the holder to the
Company of an opinion of counsel, reasonably satisfactory to
counsel to the Company, stating that an exemption from
registration under such Act is available."
(b) The Holder hereby covenants and agrees that from and
after the date hereof the Holder may, after five business day prior
written notice to the Company of the Holder's intention thereto,
directly or
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indirectly, sell, offer or contract to sell, pledge or otherwise
dispose or transfer (collectively, a "transfer") the Warrant to a
transferee who expressly and in writing agrees with the Holder and the
Company at the time of such transfer, to assume all of the obligations
of, and comply with all the provisions applicable to, the Holder under
this Agreement and under the Warrant.
5. Price.
5.1. Initial and Adjusted Exercise Price. The initial
exercise price of each Warrant shall be $4.375 per Share. The adjusted
exercise price per Share shall be the price which shall result from
time to time from any and all adjustments of the initial exercise price
per Share in accordance with the provisions of Article 8 hereof.
5.2. Exercise Price. The term "Exercise Price" herein
shall mean the initial exercise price until such price has been
adjusted, in which case thereafter the term Exercise Price shall mean
the adjusted exercise price.
6. Registration Rights.
6.1. Registration Under the Securities Act of 1933. None
of the Warrants or Shares have been registered for purposes of public
distribution under the Securities Act of 1933, as amended (the "Act").
6.2. Registrable Securities. As used herein the term
"Registrable Security" means each of the Warrants, the Shares and any
shares of Common Stock issued upon any stock split or stock dividend in
respect of such Shares; provided, however, that with respect to any
particular Registrable Security, such security shall cease to be a
Registrable Security when, as of the date of determination, (i) it has
been effectively registered under the Act and disposed of pursuant
thereto, (ii) The Registrable Securities could be sold by the Holder in
a single transaction pursuant to Rule 14-4 under the Securities Act and
the Company has agreed to remove the legend in Section 4(a) hereof;
(iii) it has ceased to be outstanding. The term "Registrable
Securities" means any and/or all of the securities falling within the
foregoing definition of a "Registrable Security." In the event of any
merger, reorganization, consolidation, recapitalization or other change
in corporate structure affecting the Common Stock, such adjustment
shall be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of the
rights granted pursuant to this Article 6.
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6.3. Mandatory Registration.
(a) Within forty-five (45) days after the date of
execution of the License Agreement, the Company shall commence the
process of preparing and filing with the U.S. Securities & Exchange
Commission (the "Commission"), on one occasion, at the sole expense of
the Company (except as provided in Section 6.4 (b) hereof), a
Registration Statement and such other documents, including a
prospectus, as may be necessary (in the opinion of counsel for the
Company), in order to comply with the provisions of the Act, so as to
permit a public offering and sale of all the Registrable Securities by
the holders thereof. Until the Registration Statement is effective,
the Company shall use its best efforts to cause the Registration
Statement to become effective under the Act, so as to permit a public
offering and sale of the Registrable Securities by the holders thereof
and will re-file the Registration Statement at the earliest possible
opportunity if not declared effective. The Company is not presently
aware of any reason that would cause the Securities & Exchange
Commission to declare the Registration Statement effective. Once
effective, the Company will use its best efforts to (a) maintain the
effectiveness of the Registration Statement until the earlier of (i)
the date that all of the Registrable Securities have been sold or (ii)
the date that the holders of the Registrable Securities receive an
opinion of counsel to the Company that all of the Registrable
Securities may be freely traded (without registration under the Act)
in a single transaction under Rule 144 (k) promulgated under the Act
or otherwise and the Company has removed the legend referred to in
Section A; and (b) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in
connection with the Registration Statement as may be necessary to
comply with the provisions of the Securities Act with respect to sales
of the Registrable Securities pursuant to the Registration Statement.
(b) The Company covenants and agrees to give written
notice of the effectiveness of any such Registration Statement to all
holders of the Registrable Securities within ten (10) business days
from the date of the Company's receipt of notice of such
effectiveness.
(c) If at any time the Company determines to proceed
with the preparation and filing of a registration statement under the
Securities Act in connection with its securities, the Company will
give written notice to its determination to all record holders of the
Registrable Securities. Upon written request by a holder, the Company
will include the Registrable Securities issued or issuable to such
holder in that registration statement (other than a registration
statement filed on either Form S-8 or Form S-4) subject to customary
limitations as imposed by the
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underwriter for any such public offering. If requested by the Company,
the holders of the Registrable Securities will agree to be bound by
such additional restrictions on the sale or transfer of the
Registrable Securities as may be required in order to comply with the
requirements of the New York Stock Exchange or the SEC in connection
with the public offering which agreement will be self-executing
without the need for execution of additional instruments. The
Company's obligations described in this paragraph shall not apply to
any issued or issuable Registrable Securities that are eligible for
immediate resale pursuant to Rule 144, without regard to volume
limitations. The Company shall pay the expenses for any registration
statement except for underwriting discounts and commissions and legal
fees of the holders of the Registrable Securities.
6.4. Covenants of the Company With Respect to Registration.
The Company covenants and agrees as follows:
(a) In connection with any registration under
Section 6.3 hereof, the Company shall file the Registration Statement
as expeditiously as possible, and until such Registration Statement is
declared effective, shall use its best efforts to have any such
Registration Statement declared effective at the earliest possible
time, and shall furnish each holder of Registrable Securities such
number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs, fees and
expenses (other than underwriting fees, discounts and nonaccountable
expense allowance applicable to the Registrable Securities and the
fees and expenses of counsel retained by the holders of Registrable
Securities) in connection with all Registration Statements filed
pursuant to Section 6.3 (a) hereof including, without limitation, the
Company's legal and accounting fees, printing expenses, registration
expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which
may be required in qualifying or registering the Registrable
Securities included in the Registration Statement for offering and
sale under the securities or blue sky laws of such states as are
reasonably requested by the holders of such Registrable Securities.
(d) The Company shall indemnify and hold harmless
each Holder, within the meaning of the Act, who may purchase from or
sell for a Holder, any Registrable Securities, from and against any
and all losses, claims, damages and liabilities caused by any untrue
statement of a material fact contained in the Registration Statement,
any other registration statement filed by the Company under the Act,
any post-effective amendment to or supplement thereto such
registration
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statements, or any prospectus included therein required to be filed or
furnished by reason of this Agreement or caused by any omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission based upon information furnished
or required to be furnished in writing to the Company by such Holder
within the meaning of the Act and each officer, director, employee and
agent of the Holder; provided, however, that the indemnification in
this paragraph (c) with respect to any prospectus shall not inure to
the benefit of a Holder (or to the benefit of any person controlling
such holder) on account of any such loss, claim, damage or liability
arising from the sale of Registrable Shares by such Holder, if a copy
of a subsequent prospectus correcting the untrue statement or omission
in such earlier prospectus was provided to such Holder by the Company
prior to the subject sale and the subsequent Prospectus was not
delivered or sent by such Holder to the purchaser prior to such sale.
(e) Each Holder, as the case may be, shall indemnify
the Company, its directors, each officer signing the Registration
Statement and each person, if any, who controls the Company within the
meaning of the Act, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement of a material
fact contained in the Registration Statement, any registration
statement or any prospectus required to be filed or furnished by
reason of this Agreement or caused by any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission
based upon information furnished in writing to the Company by such
Holder expressly for use therein.
(f) Promptly after receipt of notice of the
commencement of any action in respect of which indemnity may be sought
against any indemnifying party under this Section 6.4, the indemnified
party will notify the indemnifying party in writing of the
commencement thereof, and the indemnifying party will, subject to the
provisions hereinafter stated, assume the defense of such action
(including the employment of counsel satisfactory to the indemnified
party and the payment of expenses) insofar as such action relates to
an alleged liability in respect of which indemnity may be sought
against the indemnifying party. After notice from the indemnifying
party of its election to assume the defense of such claim or action,
the indemnifying party shall no longer be liable to the indemnified
party under this Section 6.4 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that if, in the reasonable judgment of the
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indemnified party or parties, it is advisable for the indemnified
party or parties to be represented by separate counsel, the
indemnified party or parties shall have the right to employ a single
counsel to represent the indemnified parties who may be subject to
liability arising out of any claim in respect of which indemnity may
be sought by the indemnified parties thereof against the indemnifying
party, in which event the fees and expenses of such separate counsel
shall be borne by the indemnifying party. Any party against whom
indemnification may be sought under this Section 6 shall not be liable
to indemnify any person that might otherwise be indemnified pursuant
hereto for any settlement of any action effected without such
indemnifying party's consent, which consent shall not be unreasonably
withheld.
(g) If for any reason the indemnification provided
for in Section 6.4 (d) or (e) is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant
equitable considerations.
(h) Nothing contained in this Agreement shall be
construed as requiring any Holder to exercise the Warrants held by
such Holder prior to the initial filing of any registration statement
or the effectiveness thereof.
(i) If the Company shall fail to comply with the
provisions of this Article 6, the Company shall, in addition to any
other equitable or other relief available to the holders of
Registrable Securities, be liable for any or all incidental, special
and consequential damages sustained by the holders of Registrable
Securities, resulting from the Company's failure to register the
Registrable Securities.
(j) The Company shall promptly deliver copies of all
correspondence between the Commission and the Company, its counsel or
auditors and all memoranda relating to discussions with the Commission
or its staff with respect to the Registration Statement to each holder
of Registrable Securities included for such registration in such
Registration Statement pursuant to Section 6.3 hereof requesting such
correspondence and memoranda and to the managing underwriter, if any,
of the offering in connection with which such Holder's Registrable
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Securities are being registered and shall permit each holder of
Registrable Securities and such underwriter to do such reasonable
investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the Registration Statement as
it deems reasonably necessary to comply with applicable securities
laws or rules of the National Association of Securities Dealers, Inc.
Such investigation shall include access to books, records and
properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable
extent and at such reasonable times and as often as any such holder of
Registrable Securities or underwriter shall reasonably request.
7. Adjustments of Exercise Price and Number of Shares.
7.1. Computation of Adjusted Price. Except as hereinafter
provided, in case the Company shall at any time after the date hereof
issue or sell any shares of Common, including shares held in the
Company's treasury and shares of Common Stock issued upon the exercise
of any options, rights or warrants to subscribe for shares of Common
Stock (other than the issuances or sales of Common Stock pursuant to
rights to subscribe for such Common Stock distributed to all the
shareholders of the Company and Holders of Warrants pursuant to
Section 7.8 hereof) and shares of Common Stock issued upon the direct
or indirect conversion or exchange of securities for shares of Common
Stock, for a consideration per share less than the Exercise Price in
effect immediately prior to the issuance or sale of such shares or
without consideration, then forthwith upon such issuance or sale, the
Exercise Price shall (until another such issuance or sale) be reduced
to the price (calculated to the nearest full cent) equal to the
quotient derived by dividing (A) an amount equal to the sum of (X) the
product of (a) the total number of shares of Common Stock outstanding
immediately prior to such issuance or sale, multiplied by (b) the
Exercise Price in effect immediately prior to such issuance or sale
plus, (Y) the aggregate of the amount of all consideration, if any,
received by the Company upon such issuance or sale, by (B) the total
number of shares of Common Stock outstanding immediately after such
issuance or sale; provided, however, that in no event shall the
Exercise Price be adjusted pursuant to this computation to an amount
in excess of the Exercise Price in effect immediately prior to such
computation, except in the case of a combination of outstanding shares
of Common Stock, as provided by Section 7.3 hereof.
For the purposes of any computation to be made in
accordance with this Section 7.1, the following provisions shall be
applicable:
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(i) In case of the issuance or sale of shares of
Common Stock for a consideration part or all of which shall be cash,
the amount of the cash consideration therefor shall be deemed to be
the amount of cash received by the Company for such shares (or, if
shares of Common Stock are offered by the Company for subscription,
the subscription price, or, if such securities shall be sold to
underwriters or dealers for public offering without a subscription
offering, the public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing
similar services, or any expenses incurred in connection therewith.
(ii) In case of the issuance or sale (otherwise than
as a dividend or other distribution on any stock of the Company) of
shares of Common Stock for a consideration part or all of which shall
be other than cash, the amount of the consideration therefor other
than cash shall be deemed to be the value of such consideration as
determined in good faith by the Board of Directors of the Company. For
such purposes, Common Stock issued by the Company as a matching
contribution to Company sponsored 401(k) benefit plans shall be valued
at the same price used in determining the matching contribution amount
under the plan.
(iii) Shares of Common Stock issuable by way of
dividend or other distribution on any stock of the Company shall be
deemed to have been issued immediately after the opening of business
on the day following the record date for the determination of
shareholders entitled to receive such dividend or other distribution
and shall be deemed to have been issued without consideration.
(iv) The reclassification of securities of the Company
other than shares of Common Stock into securities including shares of
Common Stock shall be deemed to involve the issuance of such shares of
Common Stock for a consideration other than cash immediately prior to
the close of business on the date fixed for the determination of
security holders entitled to receive such shares, and the value of the
consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (ii) of this Section 7.1.
(v) The number of shares of Common Stock at any one
time outstanding shall include the aggregate number of shares issued
or issuable upon the exercise of options, rights, vested warrants and
upon the conversion or exchange of convertible or exchangeable
securities.
(vi) No adjustment shall be made for any issuance or
sale of Common Stock by the Company for a consideration per share
equal to or greater than the Exercise Price at the time of such
issuance or sale.
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7.2. Options, Rights, Warrants and Convertible and
Exchangeable Securities. Except in the case of the Company issuing
rights to subscribe for shares of Common Stock distributed to all the
shareholders of the Company and Holders of Warrants pursuant to
Section 7.8 hereof, and except in the case of employee stock options
issued under existing or future shareholder approved Company stock
option plans, if the Company shall at any time after the date hereof
issue options, rights or warrants to subscribe for shares of Common
Stock, or issue any securities convertible into or exchangeable for
shares of Common Stock, (i) for a consideration per share less than
the Exercise Price in effect immediately prior to the issuance of such
options, rights or warrants, or such convertible or exchangeable
securities, or (ii) without consideration, the Exercise Price in
effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making a computation
in accordance with the provisions of Section 7.1 hereof, provided
that:
(a) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable under all the outstanding options,
rights or warrants shall be deemed to be issued and outstanding at the
time all the outstanding options, rights or warrants were issued, and
for a consideration equal to the minimum purchase price per share
provided for in the options, rights or warrants at the time of
issuance, plus the consideration (determined in the same manner as
consideration received on the issue or sale of shares in accordance
with the terms of Warrants), if any, received by the Company for the
options, rights or warrants, and if no minimum price is provided in
the options, right or warrants, then the consideration shall be equal
to zero; provided, however, that upon the expiration or other
termination of the options, rights or warrants, if any thereof shall
not have been exercised, the number of shares of Common Stock deemed
to be issued and outstanding pursuant to this subsection (a) (and for
the purposes of subsection (v) of Section 7.1 hereof) shall be reduced
by such number of shares as to which options, warrants and/or rights
shall not have vested or shall have expired or terminated unexercised,
and such number of shares shall no longer be deemed to be issued and
outstanding, and the Exercise Price then in effect shall forthwith be
readjusted and thereafter be the price which it would have been had
adjustment been made on the basis of the issuance only of shares
actually issued or issuable upon the exercise of those options, rights
or warrants as to which the exercise rights shall be vested or shall
not have expired or terminated unexercised.
(b) The aggregate maximum number of shares of Common
Stock issuable upon conversion or exchange of any
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convertible or exchangeable securities shall be deemed to be issued
and outstanding at the time of issuance of such securities, and for a
consideration equal to the consideration (determined in the same
manner as consideration received on the issue or sale of shares of
Common Stock in accordance with the terms of the Warrants) received by
the Company for such securities, plus the minimum consideration, if
any, receivable by the Company upon the conversion or exchange
thereof; provided, however, that upon the termination of the right to
convert or exchange such convertible or exchangeable securities
(whether by reason of redemption or otherwise), the number of shares
deemed to be issued and outstanding pursuant to this subsection (b)
(and for the purpose of subsection (v) of Section 7.1 hereof) shall be
reduced by such number of shares as to which the conversion or
exchange rights shall have expired or terminated unexercised, and such
number of shares shall no longer be deemed to be issued and
outstanding and the Exercise Price then in effect shall forthwith be
readjusted and thereafter be the price which it would have been had
adjustment been made on the basis of the issuance only of the shares
actually issued or issuable upon the conversion or exchange of those
convertible or exchangeable securities as to which the conversion or
exchange rights shall not have expired or terminated unexercised.
(c) If any change shall occur in the price per share
provided for in any of the options, rights or warrants referred to in
subsection (a) of this Section 7.2, or in the price per share at which
the securities referred to in subsection (b) of this Section 7.2 are
convertible or exchangeable, the options, rights or warrants or
conversion or exchange rights, as the case may be, shall be deemed to
have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the
exercise or conversion or exchange thereof, and the Company shall be
deemed to have issued upon such date new options, rights or warrants
or convertible or exchangeable securities at the new price in respect
of the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible
or exchangeable securities.
7.3. Subdivision and Combination. In case the Company shall
at any time subdivide or combine the outstanding shares of Common
Stock, the Exercise Price shall forthwith be proportionately decreased
in the case of subdivision or increased in the case of combination.
7.4. Adjustment in Number of Shares. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Article 7,
the number of Shares issuable upon the exercise of each Warrant shall
be adjusted to the nearest full number by multiplying a number equal
to the Exercise Price in effect immediately prior to such adjustment
by the
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number of Shares issuable upon exercise of the Warrants immediately
prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
7.5. Reclassification, Consolidation, Merger, etc. In case
of any reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no
par value to par value, or as a result of a subdivision or
combination), or in the case of any consolidation of the Company with,
or merger of the Company into, another corporation (other than a
consolidation or merger in which the Company is the surviving
corporation and which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a
result of a subdivision or combination of such shares or a change in
par value, as aforesaid), or in the case of a sale or conveyance to
another corporation of the property of the Company as an entirety, the
Holders shall thereafter have the right to purchase the kind and
number of shares of stock and other securities and property receivable
upon such reclassification, change, consolidation, merger, sale or
conveyance as if the Holders were the owners of the shares of Common
Stock underlying the Warrants immediately prior to any such events at
a price equal to the product of (x) the number of shares of Common
Stock issuable upon exercise of the Holder's Warrants and (y) the
Exercise Price in effect immediately prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as
if such Holders had exercised the Warrants.
7.6. Determination of Outstanding Shares of Common Stock. The
number of shares of Common Stock at any one time outstanding shall
include the aggregate number of shares of Common Stock issued and the
aggregate number of shares of Common Stock issuable upon the exercise
of options, rights, vested warrants and upon the conversion or exchange
of convertible or exchangeable securities.
7.7. Dividends and Other Distributions with Respect to
Outstanding Securities. In the event that the Company shall at any time
prior to the exercise of all Warrants make any distribution of its
assets to holders of its Common Stock as a liquidating or a partial
liquidating dividend, then the holder of Warrants who exercises its
Warrants after the record date for the determination of those holders
of Common Stock entitled to such distribution of assets as a
liquidating or partial liquidating dividend shall be entitled to
receive for the Warrant Price per Warrant, in addition to each share of
Common Stock, the amount of such distribution (or, at the option of the
Company, a sum equal to the value of any such assets at the time of
such distribution as determined by the Board of Directors of the
Company in good faith) which would have been payable to such holder had
he been the holder of record of the Common Stock
14
receivable upon exercise of his Warrant on the record date for the
determination of those entitled to such distribution. At the time of
any such dividend or distribution, the Company shall make the
appropriate reserves to ensure the timely performance of the
provisions of this Subsection 7.7.
7.8. Subscription Rights for Shares of Common Stock
or Other Securities. In the case that the Company shall at any time
after the date hereof and prior to the exercise of all the Warrants
issue any rights, warrants or options to subscribe for shares of
Common Stock or any other securities of the Company to all the
shareholders of the Company, the Holders of unexercised vested
Warrants on the record date set by the Company shall be entitled, in
addition to the shares of Common Stock or other securities receivable
upon the exercise of the Warrants, to receive such rights, warrants or
options that such Holders would have been entitled to receive had they
been, on such record date, the holders of record of the number of
whole shares of Common Stock then issuable upon exercise of their
outstanding Warrants (assuming for purposes of this Section 7.8 that
the exercise of the Warrants is permissible immediately upon
issuance).
7.9. Adjustment for Dividends of Common Stock, etc.
In the Event that the Company at any time or from time to time after
the issuance of this Warrant shall declare or pay, without
consideration, any dividend on the Common Stock payable in Common
Stock or in any right to acquire Common Stock for no consideration, or
shall effect a subdivision of the outstanding shares of Common Stock
into a greater number of shares of Common Stock (by stock split,
reclassification or otherwise than by payment of a dividend in Common
Stock or in any right to acquire Common Stock), or in the event the
outstanding shares of Common Stock shall be combined or consolidated,
by reclassification or otherwise, into a lesser number of shares of
Common Stock, then the exercise price in effect immediately prior to
such event shall, concurrently with the effectiveness of such event,
be proportionately decreased or increased, as appropriate. In the
event that the Company shall declare or pay, without consideration,
any dividend on the Common Stock payable in any right to acquire
Common Stock for no consideration, then the Company shall be deemed to
have made a dividend payable in Common Stock in an amount of shares
equal to the maximum number of shares issuable upon exercise of such
rights to acquire Common Stock. Upon each adjustment of the exercise
price pursuant to this Section 7.9 the Holder of this Warrant shall
thereafter be entitled to purchase, at the Stock Purchase Price
resulting from such adjustment, the number of shares of Common Stock
obtained by multiplying the exercise price in effect immediately prior
to such adjustment by the number of shares of Common Stock purchasable
pursuant hereto immediately prior to such adjustment,
15
and dividing the product thereof by the exercise price resulting from
such adjustment.
8. Exchange and Replacement of Warrant Certificates.
Each Warrant Certificate is exchangeable without
expense, upon the surrender thereof by the registered Holder at the
principal executive office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of securities in such denominations
as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any
Warrant Certificate, and, in case of loss, theft or destruction,
receipt of indemnity or security reasonably satisfactory to it, and
reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of the Warrant
Certificate, if mutilated, the Company will make and deliver a new
Warrant Certificate of like tenor, in lieu thereof.
9. Elimination of Fractional Interests.
The Company shall not be required to issue certificates
representing fractions of Shares pay cash to the Holder in lieu of
fractional interests equal to such fraction multiplied by the market
price of the Common Stock (the market price determined, for any date,
as the average of the closing prices of the Common Stock on the New
York Stock exchange (or such other principal securities exchange or
automated quotation system upon which the Common Stock may then be
listed for public trading) for the five immediately preceding trading
days on such exchange).
10. Reservation and Listing of Securities.
The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock as shall be issuable upon the exercise thereof.
The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all Shares issuable upon
such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any
shareholder. As long as the Warrants shall be outstanding, the Company
shall use its best efforts to cause all shares of Common Stock issuable
upon the exercise of the Warrants to be listed on or quoted by the New
York Stock Exchange or
16
listed on another national securities exchange, in the event the
Common Stock is listed on such any national securities exchange.
11. Governmental Approvals.
a. The Company and the Holder hereby acknowledge that
exercise of this Warrant by the Holder is subject to receipt of all
necessary governmental consents and approvals and may subject the
Company and/or the Holder to the filing requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and that the Holder may be prevented from acquiring shares
of Common Stock upon exercise of this Warrant until receipt of all
necessary governmental consents and approvals and the expiration or
early termination of all waiting periods imposed by the HSR Act
("Governmental Approvals"). Promptly following the Holder's notice of
exercise or other written request from the Holder, the Company and the
Holder will use their respective reasonable best efforts to make all
filings necessary to obtain all required Governmental Approvals (the
"HSR Filing"). Notwithstanding the foregoing, neither the Company nor
the Holder of this Warrant shall be obligated to take any action to
obtain any Governmental Approvals, if the taking of such action could
have the direct or indirect effect of restricting, limiting or
otherwise subjecting to penalty either the Company or the Holder of
this Warrant in the ownership of their respective assets or the
conduct of their respective business (including, without limitation,
requiring that the Holder of this Warrant sell, divest or otherwise
dispose of any of its assets or business). Subject to clause b) below,
if the Holder and, to the extent applicable, the Company are not able
to obtain all such Governmental Approvals on or before the Expiration
Date, this Warrant will expire on the Expiration Date.
b. Notwithstanding anything to the contrary contained
within this subsection (b), if the Holder has requested that the
Company and the Holder use their respective reasonable best efforts to
make all filings necessary to obtain all required Governmental
Approvals (the "Governmental Approval Procedure") at least six months
prior to the Expiration Date, and the necessary Governmental Approvals
have not been obtained prior to the Expiration Date (despite the
Holder's and Company's respective reasonable best efforts to obtain
such Governmental Approvals), the Exercise Period shall be extended
for a period not to exceed six months following the Expiration Date
(the "Post Expiration Period") in order to allow for receipt of the
necessary Governmental Approvals. During the Post Expiration Period,
the Holder may transfer this Warrant notwithstanding the transfer
restrictions contained herein provided that, concurrent with such
transfer, the transferee exercises this Warrant in full and tenders to
the Company the full Purchase Price for all shares of Common Stock
issuable pursuant to this Warrant and the
17
issuance of the shares of Common Stock issuable pursuant to this
Warrant and the issuance of the shares of Common Stock to such
transferee hereunder is not subject to receipt of any governmental
consent or approval or the expiration or termination of the waiting
period under the HSR Act. If the Governmental Approvals are obtained
with the Post Expiration Period but the Holder does not deliver notice
to the Company of the exercise of this Warrant and tender the Purchase
Price for the shares of Common Stock underlying the Warrant in
accordance herewith within ten business days following the Holder's
receipt of notice of the receipt of such Governmental Approval, then
(1) this Warrant shall expire as of the close of business on such
tenth business day following the Holder's receipt of notice of the
receipt of such Governmental Approval, and (2) the Holder shall
reimburse the Company for all (a) filing fees and (b) all other costs
and expenses (including, without limitation, all legal expenses)
incurred in connection with the required Governmental Approval with
respect solely to this Warrant.
12. Notices to Warrant Holders.
Nothing contained in this Agreement shall be construed
as conferring upon the Holder or Holders the right to vote or to
consent or to receive notice as a shareholder in respect of any
meetings of shareholders for the election of directors or any other
matter, or as having any rights whatsoever as a shareholder of the
Company. If, however, at any time prior to the expiration of the
Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the
holders of its shares of Common Stock for the purpose of
entitling them to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books
of the Company; or
(b) the Company shall offer to all the holders
of its Common Stock any additional shares of capital
stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company,
or any option, right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of
the Company (other than in connection with a
consolidation or merger) or a sale of all or
substantially all of its property, assets and business
as an entirety shall be proposed; or
18
(d) reclassification or change of the
outstanding shares of Common Stock (other than a change
in par value to no par value, or from no par value to
par value, or as a result of a subdivision or
combination), consolidation of the Company with, or
merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is
the surviving corporation and which does not result in
any reclassification or change of the outstanding shares
of Common Stock, except a change as a result of a
subdivision or combination of such shares or a change in
par value, as aforesaid), or a sale or conveyance to
another corporation of the property of the Company as an
entirety is proposed; or
(e) The Company shall propose to issue any
rights to subscribe for shares of Common Stock or any
other securities of the Company to all the shareholders
of the Company;
then in any one or more of said events, the Company shall give written
notice to the Holder or Holders of such event at least fifteen (15)
days prior to the date fixed as a record date or the date of closing
the transfer books for the determination of the shareholders entitled
to such dividend, distribution, convertible or exchangeable securities
or subscription rights, options or warrants, or entitled to vote on
such proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of closing the transfer
books, as the case may be. Failure to give such notice or any defect
therein shall not affect the validity of any action taken in connection
with the declaration or payment of any such dividend or distribution,
or the issuance of any convertible or exchangeable securities or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly
made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to a registered Holder of the Warrants,
to the address of such Holder as shown on the books of
the Company; or
(b) If to the Company, to the address set forth
below or to such other address as the Company may
designate by notice to the Holders.
19
Enesco Group, Inc.
225 Windsor Drive
Itasca, IL 60143-1225
14. Supplements and Amendments.
The Company may from time to time supplement or amend
this Agreement without the approval of any Holders of Warrant
Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard
to matters or questions arising hereunder which the Company may deem
not to adversely affect the interests of the Holders of Warrant
Certificates.
15. Successors.
All the covenants and provisions of this Agreement by
or for the benefit of the Company and the Holders inure to the benefit
of their respective successors and assigns hereunder.
16. Termination.
This Agreement shall terminate at the close of
business at 5:00 p.m. central time on June 27, 2005 subject to Section
11 adjustment, if any. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been
exercised and all the Shares issuable upon exercise of the Warrants
have been resold to the public.
17. Governing Law.
This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the
State of Illinois and for all purposes shall be construed in accordance
with the laws of said State.
18. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give
to any person or corporation other than the Company and any registered
Holder or Holders of the Warrant Certificates, Warrants or the Shares
any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole and exclusive benefit of the
Company and any Holder or Holders of the Warrant Certificates, Warrants
or the Shares.
19. Counterparts.
20
This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed, as of the day and year first above
written.
[SEAL] ENESCO GROUP, INC.
By: /s/ John F. Cauley
---------------------------
Name: John F. Cauley
Title: Chairman
Time Warner Entertainment Company, L.P.
By: /s/ Gary R. Simon
---------------------------
Name: Gary R. Simon
Title: Vice President & General Counsel
21
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED FOR PURPOSES OF PUBLIC
DISTRIBUTION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY
NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE, PURSUANT TO RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO THE COMPANY OF AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE COMPANY, STATING
THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., CHICAGO TIME, JUNE 27, 2005
No. W-2000-11
200,000
Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that Time Warner Entertainment
Company, L.P. or registered assigns, (the "Holder") is the registered holder of
200,000 Warrants to purchase, at any time from June 28, 2000, until 5:00 P.M.
Chicago time on June 27, 2005, subject to extension of such date pursuant to
Section 11 of the Warrant Agreement ("Expiration Date"), up to 200,000
fully-paid and non-assessable shares ("Shares") of common stock, par value $.125
per share (the "Common Stock"), of Enesco Group, Inc., a Massachusetts
Corporation with its principal place of business located at Itasca, Illinois
(the "Company"), at the initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $4.375 per Share upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of June 28, 2000 between the Company and Time Warner
Entertainment Company, L.P. (the "Warrant Agreement"). Payment of the Exercise
Price may be made in cash, or by wire transfer payable to the order of the
Company, or any combination thereof.
22
No Warrant may be exercised after 5:00 P.M., Chicago time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto or extended as provided in the Warrant Agreement, shall thereafter
be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the Holder (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events, the Exercise Price and type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the Holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by
this Certificate, the Company shall forthwith issue to the Holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner (s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in
the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
23
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: June 28, 2000 ENESCO GROUP, INC.
[SEAL] By: /s/ John F. Cauley
-------------------------------------
John F. Cauley
Chairman and Interim President
24
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _________ shares of Common
Stock and herewith tenders in payment for such securities cash or a wire
transfer to the order of Enesco Group, Inc. in the amount of $_______________,
all in accordance with the terms hereof. The undersigned requests that a
certificate for such securities be registered in the name of
_______________________________, whose address is ____________________________,
and that such Certificate be delivered to __________________________, whose
address is _______________.
Dated: Signature:_____________________
(Signature must conform in
all respects to name of
holder as specified on the
face of the Warrant
Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
25
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _____________________________________________
hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: Signature:_____________________
(Signature must conform in
all respects to name of
holder as specified on the
face of the Warrant
Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)