Attached files
Exhibit 4.5
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF THE SECURITIES HOLDERS AGREEMENT DATED AS OF JUNE 23, 2006 AMONG THE COMPANY, NCT
ACQUISITION LLC AND CERTAIN INVESTORS NAMED THEREIN. ANY TRANSFEREE OF THESE SECURITIES TAKES
SUBJECT TO THE TERMS OF SUCH AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE COMPANY.
NEW CENTURY TRANSPORTATION, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
Date of Issuance: November 19, 2009
THIS IS TO CERTIFY that [ ] and its permitted transferees, successors and
assigns (the Holder), for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, is entitled to purchase from NEW CENTURY TRANSPORTATION, INC., a New
Jersey corporation (the Company), at the price of FOUR HUNDRED SEVENTY FIVE DOLLARS
($475.00) per share, as such price may be adjusted as provided herein (the Exercise
Price), at any time after the date hereof and expiring on November 19, 2019 (the
Expiration Date), [ ] ([ ]) fully paid and nonassessable
shares of Common Stock (as defined in Section 11 hereof) of the Company (Common
Shares), as such number may be adjusted as provided herein. The aggregate number of Common
Shares which may be purchased pursuant to this Warrant (this Warrant) is referred to
herein as the Aggregate Number. The Exercise Price and the Aggregate Number are subject
to adjustment for any of the circumstances described in Section 6. Capitalized terms used
herein shall have the meanings ascribed to such terms in Section 11 hereof unless otherwise
defined herein. This Warrant does not entitle any Holder hereof to any rights of a shareholder of
the Company, except as may otherwise be provided.
SECTION 1. The Warrant; Transfer and Exchange; Series of Warrants.
(a) The Warrant. This Warrant and the rights and privileges of the Holder and the
Company hereunder may be exercised by the Holder in whole or in part as provided herein and
may be transferred by the Holder pursuant to the rights and restrictions contained in the
Securities Holders Agreement.
(b) Transfer and Exchanges. The Company shall record this Warrant on a register to be
maintained by the Company with its other books and records and from time to time thereafter shall
reflect the transfer of this Warrant on such register when surrendered for transfer in accordance
with the terms of the Securities Holders Agreement and properly endorsed, accompanied by
appropriate instructions, and further accompanied by payment in cash or by check, bank draft or
money order payable to the order of the Company, in United States currency, of an amount equal to
any stamp or other tax or governmental charge or fee required to be paid in connection with the
transfer thereof. Upon any such transfer, a new warrant or warrants shall be issued to the
transferee and the Holder (in the event this Warrant is only partially transferred) and the
surrendered warrant shall be canceled. Each such transferee shall succeed to all of the rights of
the Holder with respect to this Warrant being so transferred; provided, that, in the event
this Warrant is partially transferred, the Holder and such transferee shall hold rights in
proportion to their respective interests in this Warrant. This Warrant may be exchanged at the
option of the Holder, when surrendered at the Principal Office of the Company, for another warrant
or other warrants of like tenor and representing in the aggregate the right to purchase a like
number of Common Shares.
(c) Series of Warrants. This Warrant is one of a duly authorized issue of warrants
for Common Shares and was purchased by the original Holder of this Warrant pursuant to the Note and
Warrant Purchase Agreement.
SECTION 2. Exercise.
(a) Right to Exercise. At any time after the date hereof and on or before the
Expiration Date, the Holder, in accordance with the terms hereof, may exercise this Warrant, in
whole at any time or in part from time to time, by delivering this Warrant to the Company during
normal business hours on any Business Day at the Companys Principal Office, together with the
Election to Purchase, in the form attached hereto as Exhibit A and made a part hereof (the
Election to Purchase), duly executed, and payment of the Exercise Price per share for the
number of Common Shares to be purchased (the Exercise Amount), as specified in the
Election to Purchase. The Exercise Amount may be paid by cash, check or wire transfer or by the
surrender of promissory notes or other instruments representing indebtedness of the Company to the
Holder (including, without limitation, the outstanding principal of any Note and all accrued and
unpaid interest thereunder), on a dollar-for-dollar basis based on the amount of outstanding
principal and accrued and unpaid interest extinguished upon the surrender of such note or
instrument. If the Expiration Date is not a Business Day, then this Warrant may be exercised on the
next succeeding Business Day. Upon exercise of this Warrant, this Warrant shall be cancelled and
disposed of by the Company (subject to issuance of a new Warrant if this Warrant is exercised in
part). The Company shall keep copies of this Warrant and any notices given or received hereunder
available for inspection by the Holder during normal business hours at its Principal Office.
(b) Net Exercise of Warrant. In addition to the exercise of this Warrant pursuant to
Section 2(a), this Warrant may be exchanged in whole or in part at any time or from time to
time
after the date hereof and prior to the close of business on the Expiration Date (the
Exchange Right). Upon exercise of the Exchange Right, this Warrant and all rights of any
Holder hereunder shall automatically terminate and expire (subject to issuance of a new Warrant if
this
Warrant
is exercised in part) and the Company shall deliver to the Holder (without payment of
any Exercise Price by the Holder) that number of Warrant Shares which is equal to the number of
Warrant Shares issuable upon exercise of this Warrant at such time, less a number of Warrant Shares
equal to the quotient obtained by dividing (x) the aggregate Exercise Price for the Warrant Shares
in respect of which this Warrant is exercised at such time, by (y) the Fair Market Value Per Share
of one share of Common Stock at such time.
(c) Issuance of Shares. Upon receipt by the Company of this Warrant at its Principal
Office in proper form for exercise in accordance with Section 2(a) or Section 2(b),
the Holder shall be deemed to be the holder of record of Common Shares issuable upon such exercise,
notwithstanding that certificates representing such Common Shares may not then be actually
delivered. Upon such surrender of this Warrant and payment of the Exercise Price as aforesaid, the
Company shall issue and cause to be delivered with all reasonable dispatch to, or upon the written
order of, the Holder (and in such name or names as the Holder may designate) a certificate or
certificates representing the number of Common Shares to which the Holder shall be entitled,
subject to any reduction as provided in Section 2(b) for an exchange.
(d) Automatic Exercise. To the extent this Warrant has not been previously exercised
as to all of the Warrant Shares subject hereto, and if the Fair Market Value Per Share is greater
than the Exercise Price immediately prior to the close of business on the Expiration Date or as of
immediately prior to a Change of Control or an Initial Public Offering, then, upon the written
election from the holders of at least a Majority in Interest, this Warrant and all rights of any
Holder hereunder shall be deemed automatically exercised and shall terminate and expire at such
time (even if not surrendered) pursuant to Section 2(c) without any further action on the
part of the Holder. To the extent this Warrant or any remaining portion hereof at such time is
deemed automatically exercised pursuant to this Section 2(d), the Company agrees to
promptly notify the Holder hereof of the number of Warrant Shares the Holder is to receive by
reason of such automatic exercise, which number of Warrant Shares shall be automatically reduced by
a number of Warrant Shares equal to the quotient obtained by dividing (x) the aggregate Exercise
Amount, by (y) the Fair Market Value Per Share of one share of Common Stock at such time.
(e) Fractional Shares. The Company may, but shall not be required to, deliver
fractions of a Common Share upon exercise of this Warrant. If any fraction of a Common Share would
be deliverable upon an exercise of this Warrant, the Company shall, in lieu of delivering such
fraction of a Common Share, make a cash payment to the Holder in an amount equal to the same
fraction of the Fair Market Value Per Share determined as of the Business Day immediately preceding
the date of exercise of this Warrant.
(f) Partial Exercise. In the event of a partial exercise of this Warrant, the Company
shall issue to the Holder a Warrant in like form for the unexercised portion thereof.
SECTION 3. Payment of Taxes. The Company shall pay all stamp or similar taxes
attributable to the initial issuance of Common Shares or other securities issuable upon the
exercise of this Warrant or issuable pursuant to Section 6 hereof, excluding any tax or
taxes
which may be payable because the transfer involved the issuance or delivery of any share
certificates or other securities in a name other than that of the Holder in respect of which such
Common Shares or securities are issued, and, if any such tax would otherwise be payable by the
Company, no such issuance or delivery shall be made unless and until the Holder requesting such
issuance has paid to the Company the amount of any such tax, or it is established to the reasonable
satisfaction of the Company that any such tax has been paid.
SECTION 4. Replacement Warrant. In case this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and in substitution for this Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent right or interest,
but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or
destruction of such Warrant and upon receipt of indemnity reasonably satisfactory to the Company.
SECTION 5. Covenants of the Company.
(a) Affirmative Actions to Permit Exercise and Realization of Benefits. If any Common
Shares or other securities to be issued upon exercise of this Warrant require registration with or
approval of any governmental authority under any federal, state or local law (other than securities
laws) before such interests or other securities may be validly delivered upon exercise of this
Warrant, then the Company covenants that it will, at its sole expense, use its commercially
reasonable efforts to secure such registration or approval, as the case may be (including but not
limited to filings required under the Hart Scott Rodino Antitrust Improvements Act).
(b) Regulatory Requirements and Restrictions. In the event of any reasonable
determination by the Holder that, by reason of any existing or future federal, state or local law,
statute, rule, regulation, order, court or administrative ruling (collectively, a Regulatory
Requirement), the Holder is effectively materially restricted or prohibited from holding this
Warrant or the Warrant Shares (including any shares, membership interests or other securities
distributable to the Holder in any merger, reorganization, readjustment or other reclassification),
or otherwise realizing upon or receiving the benefits intended under this Warrant, the Company
shall, and shall use its commercially reasonable efforts to have its shareholders, take such action
as the Holder and the Company shall jointly agree in good faith to be reasonably necessary to
permit the Holder to comply with such Regulatory Requirement. The reasonable costs of taking such
action, whether by the Company, the Holder or otherwise, shall be borne by the Company.
(c) Validly Issued Shares. The Company covenants that all Common Shares that may be
delivered upon exercise of this Warrant, assuming full payment of the Exercise Price (including
those issued pursuant to Section 6 hereof), shall upon delivery by the Company be duly
authorized and validly issued, fully paid and nonassessable, free from all stamp and similar taxes,
liens and charges with respect to the issue or delivery thereof and otherwise free of all other
security interests, encumbrances and claims of any nature whatsoever other than such security
interests, encumbrances and claims granted by the Holder.
(d) Reservation of Shares. The Company shall at all times provide for in its
certificate of incorporation such number of duly authorized Common Shares, free of preemptive
rights, as shall be sufficient to enable the Company to issue Common Shares upon exercise of this
Warrant.
(e) Certain Amendments. The Company will not, and will not permit or cause any of its
Subsidiaries to, amend, modify or change any provision of their certificate or articles of
incorporation, limited liability company agreement, bylaws or other similar governing document, or
the terms of any class or series of its Capital Stock to the extent such amendment, modification or
change would have an adverse effect on the Holder and benefit any Affiliate of the Company or any
of its Affiliates.
(f) Limitation on Certain Restrictions. The Company will not, and will not permit or
cause any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any restriction or encumbrance on the ability of the Company to perform
and comply with their respective obligations under this Warrant.
SECTION 6. Adjustments to Exercise Price and Aggregate Number.
Under certain conditions, the Exercise Price and the Aggregate Number are subject to
adjustment as set forth in this Section 6.
(a) Adjustments for Diluting Issues.
(i) Adjustment upon Issuance of Additional Shares of Common Stock. In the event the
Company shall at any time after the date hereof issue Additional Shares of Common Stock (as defined
below) (including Additional Shares of Common Stock deemed to be issued pursuant to Section
6(a)(ii)) without consideration or for a consideration per share less than the Exercise Price
in effect immediately prior to such issue, then the Exercise Price shall be reduced, concurrently
with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in
accordance with the following formula:
EP2 = EP1 x (A + B) ÷ (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(A) EP2 shall mean the Exercise Price in effect immediately after
such issue of Additional Shares of Common Stock;
(B) EP1 shall mean the Exercise Price in effect immediately prior
to such issue of Additional Shares of Common Stock;
(C) A shall mean the number of Common Shares outstanding immediately prior to
such issue of Additional Shares of Common Stock;
(D) B shall mean the number of Common Shares that would have been issued if
such Additional Shares of Common Stock had been issued at a
price per share equal to EP1 (determined by dividing the aggregate
consideration received by the Company in respect of such issue by EP1);
and
(E) C shall mean the number of such Additional Shares of Common Stock issued
in such transaction.
For purposes of this Section 6(a), Additional Shares of Common Stock shall
mean all Common Shares issued (or, pursuant to Section 6(a)(ii), deemed to be issued) by
the Company after the date hereof, other than (1) the following Common Shares and (2) Common Shares
deemed issued pursuant to the following (x) Options or (y) Convertible Securities (clauses (1) and
(2), collectively, Exempted Securities):
(A) Common Shares, Options or Convertible Securities issued by reason of a
dividend, stock split, split-up or other distribution on Common Shares that is
covered by Sections 6(b), (c), (d) or (e);
(B) (1) up to 5,216 Common Shares, including Options therefor (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination
or other similar recapitalization affecting such shares), outstanding as of the date
hereof issued to employees or directors of, or consultants or advisors to, the
Company or any of its Subsidiaries pursuant to the New Century Transportation, Inc.
Amended and Restated Equity Incentive Plan of the Company (as amended and restated
December 27, 2002), and (2) up to 3,000 Common Shares, including Options therefor
(subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares), whether issued
before or after the date hereof, issued to employees or directors of, or consultants
or advisors to, the Company or any of its Subsidiaries pursuant to the New Century
Transportation, Inc. 2006 Stock Incentive Plan of the Company;
(C) Common Shares or Convertible Securities actually issued upon the exercise
of Options outstanding as of the date hereof or permitted hereby or Common Shares
actually issued upon the exercise, conversion or exchange of all or any portion of
the Warrants or of Convertible Securities outstanding as of the date hereof or
permitted hereby, in each case provided such issuance is pursuant to the terms of
such Option, Warrants or Convertible Security; or
(D) Common Shares, Options or Convertible Securities issued pursuant to the
acquisition of another non-Affiliate corporation or similar entity by the Company by
merger, purchase of substantially all of the assets or other reorganization or to a
joint venture agreement, provided that such issuances are approved by the
Board of Directors of the Company.
(ii) Deemed Issue of Additional Shares of Common Stock.
(A) If the Company at any time or from time to time after the date hereof shall
issue any Options or Convertible Securities (excluding Options or Convertible
Securities which are themselves Exempted Securities) or shall fix a
record date for the determination of holders of any class of securities
entitled to receive any such Options or Convertible Securities, then the maximum
number of Common Shares (as set forth in the instrument relating thereto, assuming
the satisfaction of any conditions to exercisability, convertibility or
exchangeability but without regard to any provision contained therein for a
subsequent adjustment
of such number) issuable upon the exercise of such Options or,
in the case of Convertible Securities and Options therefor, the conversion or
exchange of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record date.
(B) If the terms of any Option or Convertible Security, the issuance of which
resulted in an adjustment to the Exercise Price pursuant to the terms of Section
6(a)(i), are revised as a result of an amendment to such terms or any other
adjustment pursuant to the provisions of such Option or Convertible Security (but
excluding automatic adjustments to such terms pursuant to anti-dilution or similar
provisions of such Option or Convertible Security) to provide for either (1) any
increase or decrease in the number of Common Shares issuable upon the exercise,
conversion and/or exchange of any such Option or Convertible Security or (2) any
increase or decrease in the consideration payable to the Company upon such exercise,
conversion and/or exchange, then, effective upon such increase or decrease becoming
effective, the Exercise Price computed upon the original issue of such Option or
Convertible Security (or upon the occurrence of a record date with respect thereto)
shall be readjusted to such Exercise Price as would have been obtained had such
revised terms been in effect upon the original date of issuance of such Option or
Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to
this clause (B) shall have the effect of increasing the Exercise Price to an
amount which exceeds the lower of (x) the Exercise Price in effect immediately prior
to the original adjustment made as a result of the issuance of such Option or
Convertible Security, or (y) the Exercise Price that would have resulted from any
issuances of Additional Shares of Common Stock (other than deemed issuances of
Additional Shares of Common Stock as a result of the issuance of such Option or
Convertible Security) between the original adjustment date and such readjustment
date.
(C) If the terms of any Option or Convertible Security (excluding Options or
Convertible Securities which are themselves Exempted Securities), the issuance of
which did not result in an adjustment to the Exercise Price pursuant to the terms of
Section 6(a)(i) (either because the consideration per share (determined
pursuant to Section 6(a)(iii)) of the Additional Shares of Common Stock
subject thereto was equal to or greater than the Exercise Price then in effect, or
because such Option or Convertible Security was issued before the date hereof), are
revised after the date hereof as a result of an amendment to such terms or any other
adjustment pursuant to the provisions of such Option or Convertible Security (but
excluding automatic adjustments to such terms pursuant to anti-dilution or similar
provisions of such Option or Convertible Security) to provide for either (1) any
increase in the number of Common Shares issuable
upon the exercise, conversion or exchange of any such Option or Convertible
Security or (2) any decrease in the consideration payable to the Company upon such
exercise, conversion or exchange, then such Option or Convertible Security, as so
amended or adjusted, and the Additional Shares of Common Stock subject thereto
(determined in the manner provided in Section 6(a)(ii)(A)) shall be
deemed
to have been issued effective upon such increase or decrease becoming effective.
(D) Upon the expiration or termination of any unexercised, unconverted or
unexchanged Option or Convertible Security (or portion thereof) which resulted
(either upon its original issuance or upon a revision of its terms) in an adjustment
to the Exercise Price pursuant to the terms of Section 6(a)(i), the Exercise
Price shall be readjusted to such Exercise Price as would have obtained had such
Option or Convertible Security (or portion thereof) never been issued.
(E) If the number of Common Shares issuable upon the exercise, conversion
and/or exchange of any Option or Convertible Security, or the consideration payable
to the Company upon such exercise, conversion and/or exchange, is calculable at the
time such Option or Convertible Security is issued or amended but is subject to
adjustment based upon subsequent events, any adjustment to the Exercise Price
provided for in this Section 6(a)(ii) shall be effected at the time of such
issuance or amendment based on such number of shares or amount of consideration
without regard to any provisions for subsequent adjustments (and any subsequent
adjustments shall be treated as provided in clauses (B) and (C) of this
Section 6(a)(ii)). If the number of Common Shares issuable upon the
exercise, conversion and/or exchange of any Option or Convertible Security, or the
consideration payable to the Company upon such exercise, conversion and/or exchange,
cannot be calculated at all at the time such Option or Convertible Security is
issued or amended, any adjustment to the Exercise Price that would result under the
terms of this Section 6(a)(ii) at the time of such issuance or amendment
shall instead be effected at the time such number of shares and/or amount of
consideration is first calculable (even if subject to subsequent adjustments),
assuming for purposes of calculating such adjustment to the Exercise Price that such
issuance or amendment took place at the time such calculation can first be made.
(iii) Determination of Consideration. For purposes of Section 6(a), the
consideration received by the Company for the issue of any Additional Shares of Common Stock shall
be computed as follows:
(A) Cash and Property: Such consideration shall:
(1) insofar as it consists of cash, be computed at the aggregate
amount of cash received by the Company, excluding amounts paid or
payable for accrued interest;
(2) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time of such issue,
as determined in good faith by the Board of Directors of the Company;
and
(3) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of the
Company for consideration which covers both, be the proportion of
such consideration so received, computed as provided in clauses
(1) and (2) above, as determined in good faith by the Board of
Directors of the Company.
(B) Options
and Convertible Securities. The consideration per share
received by the Company for Additional Shares of Common Stock deemed to have been
issued pursuant to Section 6(a)(ii) relating to Options and Convertible
Securities, shall be determined by dividing:
(1) the total amount, if any, received or receivable by the
Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Company upon the
exercise, conversion or exchange of such Options or Convertible
Securities, or in the case of Options for Convertible Securities, the
exercise of such Options for Convertible Securities and the exercise,
conversion or exchange of such Convertible Securities, by
(2) the maximum number of Common Shares (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number)
issuable upon the exercise, conversion or exchange of such of Options
or Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities
and the exercise, conversion or exchange of such Convertible
Securities.
(iv) No Adjustment of Exercise Price. No adjustment in the Exercise Price shall be
made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the
Company receives written notice from the holders of at least a Majority in Interest that no such
adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares
of Common Stock.
(b) Adjustment for Stock Splits and Combinations. If the Company shall at any time or
from time to time after the date hereof effect a subdivision of the outstanding Common Shares, the
Exercise Price in effect immediately prior thereto shall be proportionately reduced,
and, conversely, if the Company shall at any time or from time to time after the date hereof
combine the outstanding Common Shares, the Exercise Price in effect immediately prior thereto shall
be proportionately increased.
(c) Adjustment for Dividends and Distributions.
(i) In the event the Company at any time or from time to time after the date hereof shall make
or issue, or fix a record date for the determination of holders of Common Shares entitled to
receive, a dividend or other distribution payable on the Common Shares in additional Common Shares,
then and in each such event the Exercise Price in effect immediately before such event shall be
decreased as of the time of such issuance or, in the event such a record date shall have been
fixed, as of the close of business on such record date, by multiplying the Exercise Price then in
effect by a fraction:
(A) the numerator of which shall be the total number of Common Shares issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(B) the denominator of which shall be the total number of Common Shares issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of Common Shares issuable in payment of
such dividend or distribution.
Notwithstanding the foregoing, if such record date shall have been fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor, the Exercise Price
shall be recomputed accordingly as of the close of business on such record date and thereafter the
Exercise Price shall be adjusted pursuant to this subsection as of the time of actual payment of
such dividends or distributions.
(ii) In the event the Company at any time or from time to time after the date hereof shall
make or issue, or fix a record date for the determination of holders of Common Shares entitled to
receive, a dividend or other distribution payable in securities of the Company (other than a
distribution of Common Shares in respect of outstanding Common Shares) or in other property and the
provisions of clause (i) of this Section 6(c) do not apply to such dividend or
distribution, then and in each such event provision shall be made so that the holder of this
Warrant shall receive upon exercise thereof, in addition to the Warrant Shares receivable
thereupon, the kind and amount of securities of the Company, cash or other property which it would
have been entitled to receive had this Warrant been exercised for Common Shares on the date of such
event and had it thereafter, during the period from the date of such event to and including the
date of exercise of this Warrant, retained such securities receivable by it as aforesaid during
such period, giving application to all adjustments called for during such period under this
subsection with respect to the rights of the Holder of this Warrant.
(d) Adjustments for Merger or Reorganization, etc. Without limitation of the Holders
rights and the Companys obligations under Sections 2(d) or 8, if there shall occur any
reorganization, recapitalization, reclassification, consolidation or merger involving the Company
in which the Common Shares (but not this Warrant) are exercised for, converted into or
exchanged for securities, cash or other property (other than a transaction covered by
Sections 6(a) or 6(c)), then, following any such reorganization, recapitalization,
reclassification, consolidation or merger, this Warrant shall thereafter be exercisable in lieu of
the Warrant Shares into which it was exercisable prior to such event into the kind and amount of
securities, cash or
other property which a holder of the number of shares of the Common Shares
issuable upon exercise of this Warrant immediately prior to such reorganization, recapitalization,
reclassification, consolidation or merger would have been entitled to receive pursuant to such
transaction, and, in such case, appropriate adjustment (as determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions in this Section
6 with respect to the rights and interests thereafter of the Holder of this Warrant, to the end
that the provisions set forth in this Section 6 (including provisions with respect to
changes in and other adjustments of the Exercise Price) shall thereafter be applicable, as nearly
as reasonably may be, in relation to any securities or other property thereafter deliverable upon
the exercise of this Warrant.
(e) Adjustments upon Other Events. In the event that at any time or from time to time
the Company shall take any action of the type contemplated by the foregoing paragraphs of this
Section 6 but not expressly provided for by such provisions (including, without limitation,
the granting of rights with equity features), then, unless in the reasonable opinion of the
Companys Board of Directors such action will not have an adverse effect upon the rights of the
Holder (taking into consideration, if necessary, any prior actions which the Board of Directors
deemed not to adversely affect the rights of the Holder), the Exercise Price shall be adjusted in
such manner and at such time as the Board of Directors may in good faith determine to be equitable
in the circumstances.
(f) Adjustment of Aggregate Number. Upon each adjustment of the Exercise Price
pursuant to this Section 6, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of shares equal to an
Aggregate Number obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the Aggregate Number purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Exercise Price resulting from such adjustment.
(g) Notices; Miscellaneous.
(i) Notice of Proposed Actions. In case the Company shall propose to effect any
action which would require an adjustment under this Section 6, then in each such case the
Company shall give to the Holder written notice of such proposed action, which shall specify the
date on which such transaction or other action is expected to take place and the date of
participation therein by the holders of Common Shares, if any such date is expected to be fixed, or
the date on which the transfer of Common Shares is expected to occur, and shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate the effect of such action
on the Common Shares and on the Aggregate Number after giving effect to any adjustment which will
be required as a result of such action. Such notice shall be so given at least fifteen (15) days
prior to the earlier of the date of the taking of such proposed action or the date of participation
therein by the holders of Common Shares.
(ii) Adjustment Notice. Whenever the Aggregate Number is to be adjusted pursuant to
this Section 6, unless otherwise agreed by the Holder, the Company shall promptly (and in
any event within ten (10) Business Days after the event requiring the adjustment) prepare a
certificate signed by the chief financial officer of the Company setting
forth, in reasonable
detail, the event requiring the adjustment and the method by which such adjustment is to be
calculated. The certificate shall set forth, if applicable, a description of the basis on which the
Board of Directors of the Company in good faith determined, as applicable, the Fair Market Value
Per Share, the fair market value of any evidences of indebtedness, shares of stock, other
securities, warrants, other subscription or purchase rights, or other property or the equitable
nature of any adjustment under this Section 6 hereof, the new Exercise Price and Aggregate
Number and, if applicable, any new securities or property to which the Holder is entitled. The
Company shall promptly cause a copy of such certificate to be delivered to the Holder. In the case
of any determination of Fair Market Value Per Share, such certificate shall be delivered to the
Holder within the time period set forth in the definition of Fair Market Value Per Share and the
Holder may object thereto as provided in such definition. Any other determination of fair market
value shall be determined in good faith by the Board of Directors and be based upon an arms length
sale of such indebtedness, shares of stock, other securities, warrants, other subscription or
purchase rights or other property, such sale being between a willing buyer and a willing seller. In
the case of any such other determination of fair market value, the Holder may object to the
determination of the Board of Directors of the Company, and any such objections shall be resolved,
in accordance with the provisions of the definition of Fair Market Value Per Share. The Company
shall keep at its Principal Office copies of all such certificates and cause the same to be
available for inspection at said office during normal business hours by the Holder or any
prospective purchaser of this Warrant (in whole or in part) if so designated by the Holder.
(iii) The adjustments required by the preceding paragraphs of this Section 6 shall be
made whenever and as often as any specified event requiring an adjustment shall occur, except that
no adjustment of the Exercise Price that would otherwise be required shall be made unless and until
such adjustment either by itself or with other adjustments not previously made adds or subtracts at
least one one-hundredth of one dollar to or from the Exercise Price immediately prior to the making
of such adjustment. Any adjustment representing a change of less than such minimum amount (except
as aforesaid) shall be carried forward and made as soon as such adjustment, together with other
adjustments required by this Section 6 and not previously made, would result in a minimum
adjustment. 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.
(iv) In computing adjustments under this Section 6, a fractional Exercise Price shall
be rounded to the nearest one-hundredth of a dollar and fractional Common Shares shall be taken
into account to the nearest one-thousandth of a share.
SECTION 7. No Dilution or Impairment. The Company will not, by amendment of its
certificate of incorporation or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, share or interest exchange or dissolution, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, including without limitation the
adjustments required under Section 6 hereof, and will at all times in good faith assist in
the
carrying out of all such terms and in taking of all such action as may be reasonably necessary
or appropriate to protect the rights of the Holder against dilution or other impairment.
SECTION 8. Put Options.
(a) At any time, and from time to time, after the earliest of (i) November 19, 2014 or (ii) an
Event of Non-Compliance (as defined below), upon the written election of the holders of a Majority
in Interest, each holder of a Warrant or Warrant Shares shall have the right and option to require
the Company to purchase from such holders (the Put Option) such Warrant and/or Warrant
Shares for a cash purchase price equal to the Fair Market Value Per Share, as of the date of such
purchase, for each such Warrant Share into which this Warrant shall have been exercised or for each
Warrant Share into which this Warrant may be exercised (net, in the case of the unexercised
Warrant, of the Exercise Price with respect to each underlying Warrant Share) (the Put
Purchase Price); provided, that no holder shall have the right to exercise the Put
Option until the payment in full in cash or securities acceptable to holders of the Bank
Indebtedness of the Bank Indebtedness.
(b) The Company shall make payment of the Put Purchase Price pursuant to any exercise of the
Put Option within fifteen (15) Business Days of final determination of the Fair Market Value Per
Share by wire transfer of immediately available funds to the account or accounts designated in
writing by such Holder, and, upon payment of the Put Purchase Price, the holder of this Warrant
and/or Warrant Shares shall deliver to the Company the certificate or certificates representing
such Warrants or Warrant Shares.
(c) Notwithstanding anything herein to the contrary, upon any Change of Control or Initial
Public Offering and the written election of the holders of a Majority in Interest, each holder of
any Warrants or Warrant Shares shall have the right and option to require the Company to purchase
from such holders (the Liquidity Event Put Option) such Warrants and/or Warrant Shares
for a price equal to the Fair Market Value Per Share for each such Warrant Share into which this
Warrant shall have been exercised or for each Warrant Share into which this Warrant may be
exercised (net, in the case of the unexercised Warrant, of the Exercise Price with respect to each
underlying Warrant Share) (the Liquidity Event Put Purchase Price); provided,
that no holder shall have the right to exercise the Liquidity Event Put Option until the payment in
full in cash or securities acceptable to holders of the Bank Indebtedness of the Bank Indebtedness.
(d) The Company shall make payment of the Liquidity Event Put Purchase Price immediately upon
the closing or consummation of the Change of Control or Initial Public Offering in cash or, at the
option of the holders of a Majority in Interest in their sole discretion, in the same consideration
in the same proportions as the Company and/or its equity holders receive in the Change of Control
or Initial Public Offering that is the subject of the Liquidity Event Put Option.
SECTION 9. Securities Holders Agreement; Registration Rights Agreement.
(a) This Warrant and, upon exercise of this Warrant, the Warrant Shares issued upon such
exercise shall be deemed Securities (as defined in the Securities Holders Agreement) for all
purposes of Securities Holders Agreement, and the Holder of this Warrant shall be fully bound
by, entitled to the benefits of, and subject to, all of the covenants, terms and conditions of
the Securities Holders Agreement as though an original party thereto and shall be deemed an
Investor (as defined in the Securities Holders Agreement) for all purposes thereof. By acceptance
of this Warrant, the Holder hereof agrees that such Holder is bound by the Securities Holders
Agreement.
(b) Upon exercise of this Warrant, the Warrant Shares issued upon such exercise shall be
deemed Sponsor Registrable Securities (as defined in the Registration Rights Agreement) for all
purposes of Registration Rights Agreement, and the Holder of this Warrant shall be fully bound by,
entitled to the benefits of, and subject to, all of the covenants, terms and conditions of the
Registration Rights Agreement as though an original party thereto and shall be deemed an Investor
(as defined in the Registration Rights Agreement) for all purposes thereof. By acceptance of this
Warrant, the Holder hereof agrees that such Holder shall be bound by the Registration Rights
Agreement upon exercise of this Warrant and receipt of the Warrant Shares therefor.
(c) A copy of the Securities Holders Agreement and/or the Registration Rights Agreement may be
obtained by the Holder hereof upon written request to the Company.
SECTION 10. Events of Non-Compliance and Remedies.
(a) Events of Non-Compliance. If the Company fails to keep and fully and promptly
perform and observe in all material respects any of the terms or covenants contained herein or in
the Notes or the Note and Warrant Purchase Agreement, within thirty (30) days from the earlier to
occur of (A) written notice from the Holder specifying what failure has occurred, or requesting
that a specified failure be remedied or (B) an executive officer of the Company becoming aware of
such failure, subject in each case to any applicable cure period (an Event of
Non-Compliance), the Holder shall be entitled to the remedies set forth in Section
10(b) hereof.
(b) Remedies. On the occurrence of an Event of Non-Compliance, in addition to any
remedies the Holder may have under this Warrant, the Notes, the Note and Warrant Purchase Agreement
or applicable law, the Holder may bring any action for injunctive relief or specific performance of
any term or covenant contained herein or in the Notes or the Note and Warrant Purchase Agreement,
the Company hereby acknowledging that an action for money damages may not be adequate to protect
the interests of the Holder hereunder; provided, that no holder shall have the right to
exercise the Liquidity Event Put Option until the payment in full in cash or securities acceptable
to holders of the Bank Indebtedness of the Bank Indebtedness.
SECTION 11. Definitions.
For purposes of this Warrant, in addition to the terms defined elsewhere herein, the following
terms shall have the following meanings (with, unless otherwise defined herein, terms defined in
the singular having comparable meanings when used in the plural and vice versa):
Affiliate means, with respect to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or under common control with, such Person.
Bank Indebtedness means obligations, liabilities and indebtedness of every nature of
each of the Company and any other guarantor of all or any portion of the Bank Indebtedness from
time to time owed to the administrative agent or any lender under the Senior Credit Agreement,
including, without limitation, the principal amount of all debts, claims and
indebtedness, accrued
and unpaid interest accruing thereon (including, without limitation, interest accruing after the
commencement of any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship,
liquidation, dissolution, winding-up, reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other officer with similar powers or any other
proceeding for the liquidation, dissolution or other winding up of a Person (a
Proceeding), without regard to whether or not such interest is an allowed claim) and all
fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now and from time to time hereafter owing, due or payable, whether before or after the
filing of a Proceeding. Bank Indebtedness shall be considered to be outstanding whenever any loan
commitment under the Senior Credit Agreement is outstanding.
Business Day means any day other than a Saturday, Sunday or a day on which
commercial banking institutions in New York, New York are authorized or required by law or
executive order to be closed.
Capital Stock means (i) with respect to any Person that is corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common
or preferred) of such corporation and (ii) with respect to any Person that is not a corporation,
any and all partnership, membership, limited liability company or other equity interests of such
Person that confer on a Person the right to receive a share of the profits and losses of, or the
distribution of assets of, the issuing Person; and in each case, any and all warrants, rights or
options to purchase any of the foregoing.
Change of Control means at any time the occurrence of any of the following events:
(i) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act) other than NCT Acquisition LLC or any of its Affiliates is or becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed
to have beneficial ownership of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time), directly or indirectly,
of twenty-five percent (25%) or more of the then outstanding Capital Stock issued by the Company
the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of the Company, even though the
right so to vote may be or has been suspended by the happening of such contingency, or (ii) the
replacement of a majority of the Board of Directors of the Company over a two (2) year period from
the directors who constituted the Board of Directors at the beginning of such period, and such
replacement shall not have been approved by a vote of at least a majority of the Board of Directors
of the Company then still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of Directors was previously so
approved.
Common Stock means the common stock with a par value of $.01 per share of the
Company, authorized pursuant to the Companys certificate of incorporation, as the same may be
amended from time to time.
Convertible Securities means any evidences of indebtedness, shares or other
securities directly or indirectly exercisable for, convertible into or exchangeable for Common
Shares, but excluding Options and the Warrants.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission thereunder.
Fair Market Value Per Share means as of a particular date (a) the value ascribed to
each share of Common Stock in an Initial Public Offering or a Change of Control or (b) in the
absence of an Initial Public Offering or a Change of Control, (i) the fair market value of the
Capital Stock of the Company based upon an arms length sale of the Company on such date (including
its ownership interest in all Persons) as an entirety, such sale being between a willing buyer and
a willing seller and determined without reference to any discount for minority interest,
restrictions on transfer, disparate voting rights among classes of shares or membership interests
or lack of marketability with respect to membership interests, divided by (ii) the aggregate number
of outstanding Common Shares (assuming repayment of any securities of the Company that are senior
in right of payment to Common Stock). In the absence of an Initial Public Offering or a Change of
Control, the Fair Market Value Per Share shall be determined by a majority of the members of the
Board of Directors of the Company, in good faith, within ten (10) Business Days of any event for
which such determination is required and such determination (including the basis therefor) shall be
promptly provided to the Holder. Such determination shall be binding on the Holder unless (x) the
determination by the Board of Directors of the Company is not unanimous and (y) the Holder objects
thereto in writing within ten (10) Business Days of receipt. In the event the Company and the
Holder cannot agree on the Fair Market Value Per Unit within ten (10) Business Days of the date of
the Holders objection, the Company and the Holder shall each select a disinterested appraiser
(which may be a national or regional investment bank or national accounting firm) to determine the
Fair Market Value Per Unit. Any selection of an appraiser shall be made in good faith within seven
(7) Business Days after the end of the last ten (10) Business Day period referred to above and any
determination of Fair Market Value Per Unit by such appraisers shall be made within thirty (30)
days of the date of selection. In the event that the difference between the Fair Market Value Per
Unit determined by each of such appraisers is less than ten percent (10%), the Fair Market Value
Per Unit shall be equal to the average of such Fair Market Values Per Unit, and each party shall
bear the fees and expenses of the appraiser selected by it as set forth above. In the event that
the difference between the Fair Market Values Per Unit determined by such appraisers is greater
than ten percent (10%), a disinterested appraiser (which may be a national or regional investment
bank or national accounting firm) mutually selected by the appraisers selected by the Company and
the Holder pursuant to the terms set forth above shall determine the Fair Market Value Per Unit,
the fees and expenses of which shall be paid fifty percent (50%) by the Company and fifty percent
(50%) by the Holder (and each party shall bear the fees and expenses of the appraiser selected by
it as set forth above) unless such determination results in a Fair Market Value Per Unit more than
one hundred ten percent (110%) of the Fair Market Value Per Unit initially determined by the
Company, in which case such fees and expenses of the disinterested appraiser and the appraisers
selected by the Holder and the Company pursuant to the terms set forth above shall be borne by the
Company. Any selection of a disinterested appraiser shall be made in good faith within ten (10)
Business Days after the determination of the Fair Market Value Per Unit by the appraisers selected
by the Holder and the Company, and the Holder and the Company shall instruct the disinterested
appraiser to make its determination of Fair Market Value Per Unit within thirty (30) days of
the date of selection.
Initial Public Offering means a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act, covering the offer and
sale of Common Stock (or, if the Company is reorganized or recapitalized for the purposes of such
offering, of such substantially equivalent series of capital stock of the Company (or a holding
company thereof)) for the account of the Company to the public.
Majority in Interest means a majority of the Warrant Shares issuable upon exercise
of the Warrants issued pursuant to the Note and Warrant Purchase Agreement.
Note and Warrant Purchase Agreement means that certain Note and Warrant Purchase
Agreement, dated as of November 19, 2009, by and among the Company and each of the investors listed
on Exhibit A thereto, as the same may be amended, modified, supplemented or restated.
Notes means those Senior Subordinated Promissory Notes issued under the Note and
Warrant Purchase Agreement.
Options means any rights, options or warrants to subscribe for, purchase or
otherwise acquire Common Shares or Convertible Securities.
Person means any individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of any whatever nature and includes any successor (by merger or
otherwise) of such entity.
Principal Office means 45 East Park Drive, Westampton, New Jersey 08060, or such
other principal office of the Company in the United States of America the address of which first
shall have been set forth in a notice to the Holder.
Registration Rights Agreement means that certain Registration Rights Agreement,
dated as of June 23, 2006, by and among the Company, NCT Acquisition LLC and the individuals
designated as Investors on the signature pages thereto, as the same may be amended, modified,
supplemented or restated.
Securities Act means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
Securities Holders Agreement means that certain Securities Holders Agreement, dated
as of June 23, 2006, by and among the Company, NCT Acquisition LLC and the individuals designated
as Investors on the signature pages thereto, as the same may be amended, modified, supplemented or
restated.
Senior Credit Agreement means that certain Credit Agreement, dated as of August 14,
2006, as amended December 1, 2006, June 29, 2007, February 13, 2008 and November 19, 2009 and as
further amended, restated, supplemented or otherwise modified from time to time, among
the Company, each of the guarantors identified thereto as may from time to time become or have
become a party thereto, the lenders that may from time to time become or have become a party
thereto, PNC Bank, National Association and Sovereign Bank, as co-syndication agents,
Churchill
Financial Cayman Ltd and CIT Capital Securities, LLC, as co-documentation agents, and Wachovia Bank
National Association, as administrative agent, whether outstanding on the date hereof or hereafter
created, to the lenders thereunder.
Subsidiary means, as to any Person, a corporation, partnership, limited liability
company or other entity of which shares of capital stock or other ownership interests having
ordinary voting power (other than capital stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership, limited liability company or other entity are at
the time owned, or the management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person.
Warrant Shares means (a) the Common Shares issued or issuable upon exercise of this
Warrant in accordance with its terms and (b) all other classes of shares or membership interests of
the Company issuable upon exercise of this Warrant as a result of interest distribution, membership
interest split or other reclassification or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Companys shares or membership interests.
Warrants means, collectively, this Warrant and those other warrants to purchase
Common Stock issued under the Note and Warrant Purchase Agreement
SECTION 12. Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in accordance with the provisions of the Note and Warrant
Purchase Agreement.
SECTION 13. Successors and Assigns. This Warrant shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted assigns,
provided that the Company shall have no right to assign its rights, or to delegate its
obligations, hereunder without the prior written consent of the Holder.
SECTION 14. Amendment and Waiver. The Company may amend or supplement the Warrants,
including this Warrant, with the written consent of the holders of at least a Majority in Interest;
provided, that the provisos at the conclusion of each of Sections 8(a), 8(c) and
10(b) may not be amended without the prior written consent of the Required Lenders (as defined
in the Senior Credit Agreement). After an amendment or supplement under this Section 14 or
any waiver in accordance with the Warrants, including this Warrant, becomes effective, the Company
shall mail to the holders of the Warrants, including this Warrant, affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity
thereof. After an amendment or waiver becomes effective it shall bind every holder of Warrants. The
Company may place an appropriate notation about an amendment or waiver on any Warrant thereafter
authenticated. The Company in exchange for all Warrants may issue new Warrants that reflect the
amendment or waiver.
SECTION 15. Headings. The headings in this Warrant are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 16. Governing Law; Jurisdiction; Jury Trial Waiver; Etc.
(a) This Warrant is to be construed and enforced in accordance with and governed by the laws
of the State of New York and without regard to the principles of conflicts of law of such state.
(b) THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY AGREE THAT ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS WARRANT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND EACH HEREBY EXPRESSLY
SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT
FORUM. THE COMPANY AND THE HOLDER EACH HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN THIS
AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING.
(c) THE COMPANY AND THE HOLDER EACH HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS WARRANT, ANY RIGHTS OF
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE COMPANY (I) CERTIFIES
THAT NO HOLDER OR ATTORNEY OR OTHER REPRESENTATIVE OF THE HOLDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE HOLDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (II) ACKNOWLEDGES THAT THE HOLDER HAS BEEN INDUCED TO PURCHASE THIS WARRANT BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(d) FINAL JUDGMENT AGAINST THE COMPANY OR ANY HOLDER, IN ANY ACTION, SUIT OR PROCEEDING
HEREUNDER SHALL BE CONCLUSIVE, AND MAY BE ENFORCED IN OTHER JURISDICTIONS (I) BY SUIT, ACTION OR
PROCEEDING ON THE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY LIABILITY OF THE COMPANY
OR ANY HOLDER THEREIN DESCRIBED OR (II) IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF
SUCH OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE COMPANY OR ANY HOLDER MAY AT
ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDING, TO ENFORCE A FINAL JUDGMENT AGAINST
ANY HOLDER OR ANY OF ITS PROPERTIES OR THE COMPANY OR ANY OF ITS PROPERTIES, AS THE CASE MAY BE, IN
ANY STATE OR FEDERAL COURT OF THE UNITED STATES OR OF ANY COUNTRY OR PLACE WHERE THE COMPANY OR ITS
PROPERTIES MAY BE FOUND.
SECTION 17. Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
SECTION 18. Entire Agreement. This Warrant is intended by the parties hereto as a
final expression of their agreement and, together with the Note and Warrant Purchase Agreement and
the applicable Note, is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein or in the Note and Warrant Purchase Agreement or the applicable Note. This Warrant
supersedes all prior agreements and understandings between the parties with respect to such subject
matter.
SECTION 19. Further Assurances. The Company shall execute such documents and perform
such further acts (including, without limitation, obtaining any consents, exemptions,
authorizations or other actions by, or giving any notices to, or making any filings with, any
governmental authority or any other Person) as may be reasonably required or desirable to carry out
or to perform the provisions of this Warrant.
SECTION 20. Survival of Provisions. Notwithstanding the full exercise by the Holder
of its rights to purchase Common Shares hereunder, the provisions of this Warrant shall survive
such exercise and the provisions of Sections 5(b) and 5(c) and 12 through 23 of this
Warrant shall survive the Expiration Date.
SECTION 21. Delays, Omissions and Indulgences. It is agreed that no delay or omission
to exercise any right, power or remedy accruing to the Holder upon any breach or default of the
Company under this Warrant shall impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on the Holders part
of any breach or default under this Warrant, or any waiver on the Holders part of any provisions
or conditions of this Warrant must be in writing and that all remedies, either under this Warrant,
or by law or otherwise afforded to the Holder, shall be cumulative and not alternative.
SECTION 22. Rights of Transferees. Subject to the Securities Holders Agreement, the
rights granted to the Holder hereunder shall pass to and inure to the benefit of all subsequent
transferees of all or any portion of this Warrant (provided that the Holder and any
transferee shall hold such rights in proportion to their respective ownership of this Warrant and
Warrant Shares) until extinguished pursuant to the terms hereof.
SECTION 23. Rules of Construction. Unless the context otherwise requires, or is not
exclusive, and references to sections or subsections refer to sections or subsections of this
Warrant. All pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require. The Company and the Holder each acknowledge
that they have been represented by counsel in connection with this Warrant. The Company and the
Holder have participated jointly in the negotiation and drafting of this Warrant. In the event an
ambiguity or question of intent or interpretation arises under any provision of this Warrant, this
Warrant shall be construed as if drafted jointly by the parties thereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued and executed in its
corporate name by its duly authorized officers and its corporate seal to be affixed hereto as of
the date below written.
DATED: NOVEMBER 19, 2009 | NEW CENTURY TRANSPORTATION, INC. |
|||
By: | ||||
Name: | Brian J. Fitzpatrick | |||
Title: | Executive Vice President, Secretary and Chief Financial Officer |
|||
EXHIBIT A
NOTICE OF EXERCISE
To: |
||||
1. The undersigned hereby represents that such holder is the registered holder of the attached
Warrant, and pursuant to the provisions of the attached Warrant, hereby elects to exercise this
Warrant with respect to Common Shares (the Exercise Amount). Capitalized terms
used but not otherwise defined herein have the meanings ascribed thereto in the attached Warrant.
2. The undersigned herewith tenders payment for such interests in the following manner (please
check type, or types, of payment and indicate the portion of the Exercise Price to be paid by each
type of payment):
Exercise for Cash, Check, Wire Transfer or the surrender of Promissory Notes or other Instruments representing indebtedness of the Company to the undersigned | |||
Cashless Exercise |
3. Please issue a certificate or certificates representing the interests issuable in respect
hereof under the terms of the attached Warrant, as follows:
(Name of Record Holder/Transferee)
and deliver such certificate or certificates to the following address:
(Address of Record Holder/Transferee)
4. If the Exercise Amount is less than all of the Common Shares purchasable hereunder, please
issue a new warrant representing the remaining balance of such interests, as follows:
(Name of Record Holder/Transferee)
and deliver such warrant to the following address: