Exhibit 4.2
EXECUTION COPY
THE SECURITIES REPRESENTED BY
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF OR ENCUMBERED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT OR SUCH LAWS, AND, IF REQUESTED BY THE COMPANY, UPON
DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM THE ACT OR SUCH
LAWS.
THE SECURITIES REPRESENTED BY
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE ARE SUBJECT
TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN AN EQUITY HOLDERS
AGREEMENT DATED AS OF AUGUST 21, 2008, AS AMENDED FROM TIME TO
TIME, AND A PURCHASE AGREEMENT DATED AS OF AUGUST 21, 2008, AS
AMENDED FROM TIME TO TIME, COPIES OF WHICH ARE ON FILE WITH THE
SECRETARY OF THE ISSUER.
WARRANT
TO PURCHASE
SHARES OF CLASS A COMMON
STOCK
OF EVERCORE PARTNERS
INC.
1. Definitions . Unless the
context otherwise requires, when used herein the following terms
shall have the meaning indicated.
“Accreted Principal
Amount” has the meaning set forth in the
Indenture.
“Affiliate” means, with
respect to any Person, any other Person which directly or
indirectly controls or is controlled by or is under common control
with such Person.
“Approved Transaction”
means an acquisition of the stock, assets or business of another
Person by the Company, Evercore LP or any of their respective
Subsidiaries, or a strategic alliance or commercial transaction
entered into by the Company, Evercore LP, or any of their
respective Subsidiaries with another Person, which has been duly
approved by the Board.
“Board” means the Board
of Directors of the Company.
“Business Combination”
means (a) any reorganization, consolidation, merger, share
exchange or similar business combination transaction involving the
Company with any Person or (b) the sale, assignment,
conveyance, transfer, lease or other disposition by the Company of
all or substantially all of its assets.
“Business Day” means any
day that is not a Saturday, a Sunday, a national holiday or other
day on which banks in New York, New York or Tokyo, Japan are
required or authorized to close.
“Closing Price” of the
Common Stock on any date means the closing sale price per share (or
if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on that date as reported in
composite transactions for the principal U.S. securities exchange
on which the Common Stock is listed or admitted for trading or, if
the Common Stock is not listed or admitted for trading on a U.S.
national or regional securities exchange, as reported on the
quotation system on which such security is quoted. If the Common
Stock is not listed or admitted for trading on a United States
national or regional securities exchange and not reported on a
quotation system on the relevant date, the “closing
price” will be the last quoted bid price for the Common Stock
in the over-the-counter market on the relevant date as reported by
Pink Sheets LLC or similar organization. If the Common Stock is not
so quoted, the Closing Price shall be deemed to be the fair value
per share of Common Stock as determined in good faith by the
Board.
“Common Stock” means the
Class A Common Stock, par value $0.01 per share, of the
Company.
“Company” means Evercore
Partners Inc.
“control” (including its
correlative meanings, “controlled by” and “under
common control with”) means possession, directly or
indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
“Current Market Price”
of Common Stock on any day means the average of the Closing Prices
per share of Common Stock for each of the five consecutive Trading
Days ending on the earlier of the day in question and the day
before the Ex-Dividend Date with respect to the issuance or
distribution requiring such computation; provided that, for
purposes of Section 13(b) hereof, (i) such term shall
mean the Closing Price of the Common Stock on the earlier of the
date of announcement of the relevant sale or issuance or the date
on which the price for such sale or issuance is agreed upon or set
and (ii) notwithstanding the foregoing clause (i), in the
event that the price per share for Common Stock being sold or
issued is variable or based on a formula, “Current Market
Price” shall mean the Closing Price of the Common Stock on
the date on which the price per share for Common Stock being sold
or issued is fixed.
“Equity Holders
Agreement” means the Equity Holders Agreement, dated as of
August 21, 2008, by and between the Company and Mizuho CB, as
amended from time to time.
“Evercore LP” means
Evercore LP, a Delaware limited partnership.
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“Ex-Dividend Date”
means, with respect to any issuance or distribution, the first date
on which the shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the
right to receive such issuance or distribution.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated
thereunder.
“Exercise Price” has the
meaning given to it in Section 2 herein.
“Expiration Date” has
the meaning given to it in Section 3(a) herein.
“Fund” has the meaning
set forth in the Equity Holders Agreement.
“Indenture” means the
Indenture by and between the Company and The Bank of New York
Mellon, as trustee, dated as of August 28, 2008, in the form
as set forth in Exhibit A to the Purchase Agreement, as amended
from time to time.
“Initial Holder
Agreements” means the Purchase Agreement and the Equity
Holders Agreement.
“Mizuho CB” means,
Mizuho Corporate Bank, Ltd., a Japanese corporation.
“Market Disruption
Event” means the occurrence or existence for more than one
half hour period in the aggregate on any scheduled Trading Day for
the Common Stock of any suspension or limitation imposed on trading
(by reason of movements in price exceeding limits permitted by the
primary exchange or trading system on which such shares are traded)
in the Common Stock or in any options, contracts or future
contracts relating to the Common Stock, and such suspension or
limitation occurs or exists at any time before 1:00 p.m. (New York
City time) on such day.
“NYSE” means the New
York Stock Exchange.
“Original Issue Date”
means the date on which this Warrant was first issued.
“Person” means any
individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Entity or
any agency or political subdivisions thereof or any group comprised
of two or more of the foregoing.
“Purchase Agreement”
means that certain Purchase Agreement, dated as of August 21,
2008, by and between the Company and Mizuho CB, as amended from
time to time.
“Regular Cash Dividends”
means regular cash dividends payable by the Company out of its
surplus or net profits legally available therefore on a quarterly,
semi-annual or annual basis.
“Right” has the meaning
set forth in Section 13(b) herein.
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“SEC” means the U.S.
Securities and Exchange Commission or any other federal agency then
administering the Securities Act or the Exchange Act and other
federal securities laws.
“Securities Act” means
the Securities Act of 1933, as amended, or any successor statute,
and the rules and regulations promulgated thereunder.
“Senior Notes” means the
5.2% Senior Notes due 2020 of the Company as contemplated by the
Indenture.
“Shares” has the meaning
given to it in Section 2 herein.
“Subsidiary” means, with
respect to a party, any corporation, partnership, trust, limited
liability company or other entity in which such party (or another
Subsidiary of such party) holds stock or other ownership interests
representing (A) more than 50% of the voting power of all
outstanding stock or ownership interests of such entity,
(B) the right to receive more than 50% of the net assets of
such entity available for distribution to the holders of
outstanding stock or ownership interests upon a liquidation or
dissolution of such entity or (C) a general or managing
partnership interest or similar position in such entity. For
purposes of this Warrant, (i) none of the Funds shall be
deemed to be a Subsidiary of the Company and (ii) Evercore LP
shall be deemed to be a Subsidiary of the Company.
“Tender Offer
Repurchases” means any purchase of shares of Common Stock by
the Company or any Affiliate thereof pursuant to any tender offer
or exchange offer subject to Section 13(e) or 14(e) of the
Exchange Act or Regulation 14E promulgated thereunder, whether for
cash, shares of Common Stock, other securities of the Company or
other forms of consideration (or any combination thereof), effected
while this Warrant is outstanding, where the fair value (determined
in good faith by the Board) of the aggregate consideration
distributed (the “Aggregate Amount”) expressed as an
amount per share of Common Stock validly tendered or exchanged, and
not withdrawn, pursuant to such tender offer or exchange offer as
of the Expiration Time exceeds the Closing Price of the Common
Stock on the first Trading Day immediately following the date on
which the Expiration Time occurs; provided , however, that
“Tender Offer Repurchase” shall not include any
purchase of shares by the Company or any Affiliate thereof made in
accordance with the requirements of Rule 10b-18 as in effect under
the Exchange Act. For purposes of this definition,
“Expiration Time” means the last time at which tenders
or exchanges could have been made pursuant to such tender offer or
exchange offer.
“Trading Day” means any
day on which (i) there is no Market Disruption Event and
(ii) the NYSE or, if the Common Stock is not listed on the
NYSE, the principal national securities exchange on which the
Common Stock is listed, is open for trading or, if the Common Stock
is not so listed, admitted for trading or quoted, any Business Day.
A Trading Day only includes those days that have a scheduled
closing time of 4:00 p.m. (New York City time) or the then standard
closing time for regular trading on the relevant exchange or
trading system.
“Warrantholder” has the
meaning given to it in Section 2 herein.
2. Number of Shares; Exercise
Price . This certifies that, for value received, Mizuho CB or
its registered assigns or transferees (the
“Warrantholder”) is entitled, upon the terms and
subject to the conditions hereinafter set forth, to acquire from
the Company, in whole or in part, up to an
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aggregate of 5,454,545 fully paid and
nonassessable shares of Common Stock (the “Shares”) of
the Company, at a per Share purchase price (the “Exercise
Price”) equal to $22.00. The number and type of Shares and
the Exercise Price are subject to adjustment as provided herein,
and all references to “Shares,” “Common
Stock” and “Exercise Price” herein shall be
deemed to include any such adjustment or series of
adjustments.
3. Exercise Rights
.
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(a)
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Exercise of
Warrant; Term . The right
to purchase the Shares represented by this Warrant is exercisable,
in whole or in part, by the Warrantholder (other than Mizuho CB or
its Affiliates, which are not permitted to exercise this Warrant),
at any time or from time to time, but in no event later than 11:59
p.m. New York City time, on August 28, 2020 (the
“Expiration Date”), by (i) the surrender of this
Warrant and Notice of Exercise annexed hereto, duly completed and
executed on behalf of such Warrantholder, at the office of the
Company in New York, New York (or such other office or agency of
the Company in the United States as it may designate by notice in
writing to such Warrantholder at the address of such Warrantholder
appearing on the books of the Company), and (ii) (A) the
payment of the Exercise Price for the Shares thereby purchased at
the election of such Warrantholder by tendering in cash, by
certified or cashier’s check payable to the order of the
Company or by wire transfer of immediately available funds to an
account designated by the Company, (B) the delivery to the
Company of Senior Notes with an Accreted Principal Amount plus
accrued and unpaid interest equal to the Exercise Price at the
office of the Company in New York, New York (or such other office
or agency of the Company in the United States) as the Company may
designate by notice in writing to such Warrantholder at the address
of such Warrantholder appearing on the books of the Company), or
(C) having the Company withhold, from the Shares that would
otherwise be delivered to the Warrantholder upon such exercise,
Shares issuable upon exercise of the Warrant equal in value to the
aggregate Exercise Price as to which this Warrant is so exercised
based on the Closing Price of the Common Stock on the Trading Day
immediately prior to the date on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to
this Section 3.
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(b)
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Replacement
of Warrant . If the
exercising (or transferring, as the case may be) Warrantholder does
not exercise (or transfer, as the case may be) this Warrant in its
entirety, the Warrantholder will be entitled to receive from the
Company within a reasonable time, not exceeding ten
(10) Business Days, a new warrant in substantially identical
form for the purchase of that number of Shares equal to the
difference between the number of Shares subject to this Warrant and
the number of Shares as to which this Warrant is so exercised (or
transferred, as the case may be).
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(c)
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Notwithstanding anything to the
contrary contained herein, in no event shall Mizuho CB or any of
its Affiliates be permitted to exercise this Warrant or be
permitted to receive Shares issuable upon exercise thereof,
provided that Mizuho CB or its Affiliates, as applicable,
may exercise this Warrant contemporaneously with or immediately
prior to a transfer of all Shares issued pursuant to such exercise,
solely for the purpose of effectuating such transfer, on condition
that Mizuho CB or its Affiliates, as applicable, has entered into a
binding agreement to effectuate such transfer; and further ,
provided ,
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that if such transfer of any
Shares issued pursuant to an exercise of this Warrant by Mizuho CB
or its Affiliates, as applicable, is not completed
contemporaneously with or immediately following such exercise, such
exercise shall be deemed void and all Shares issued pursuant
thereto shall be void and cancelled.
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(d)
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Immediately
following the Expiration Date, this Warrant shall automatically
expire and be void without any action on the part of the Company or
the Warrantholder.
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4. Issuance of Shares;
Authorization; Listing .
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(a)
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The Company
hereby represents and warrants that any Shares issued pursuant to
the exercise of this Warrant in accordance with the provisions of
Section 3, upon issuance and payment therefore in any manner
provided in Section 3(a), shall be duly and validly issued and
fully paid and nonassessable and shall be free from preemptive
rights and free of any lien or adverse claim (other than liens or
charges created by or imposed upon the Warrantholder, except as
otherwise provided herein, income and franchise taxes incurred in
connection with the exercise of the Warrant, or taxes in respect of
any transfer occurring contemporaneously therewith or as a result
of the Warrantholder being a non-U.S. person). The Company shall at
all times have authorized and reserved and keep available for
issuance a sufficient number of shares of Common Stock to permit
the delivery in respect of this Warrant of the number of shares of
Common Stock due upon exercise. The Company will list or cause to
have quoted such shares of Common Stock on each national securities
exchange or in the over-the-counter market or such other market on
which the Common Stock is then listed or quoted. The Company will
use reasonable best efforts to ensure that the Shares may be issued
without violation of any applicable law or regulation or of any
requirement of any securities exchange on which the Shares are
listed or traded.
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(b)
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Subject to the
next sentence, certificates for Shares issued upon exercise of this
Warrant will be issued in such name or names as the Warrantholder
may designate and will be delivered to such named Person or Persons
within a reasonable time, not to exceed ten (10) Business Days
after the date on which this Warrant has been duly exercised in
accordance with the terms of this Warrant. The Company agrees that
the Shares so issued will be deemed to have been issued to the
Warrantholder as of the close of business on the date on which this
Warrant and payment of the Exercise Price are delivered to the
Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may
then be closed or certificates representing such Shares may not be
actually delivered on such date.
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5. No Fractional Shares or
Scrip . No fractional Shares or scrip representing fractional
Shares shall be issued upon any exercise of this Warrant. In lieu
of any fractional Share to which the Warrantholder would otherwise
be entitled, the Warrantholder shall be entitled to receive a cash
payment equal to (i) the Closing Price per share of Common
Stock computed as of the trading day immediately preceding the date
the Warrant is presented for exercise, less the Exercise Price,
multiplied by (ii) such fraction of a Share.
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6. No Rights as Shareholders . This
Warrant does not entitle the Warrantholder to any voting rights or
other rights as a stockholder of the Company prior to the date of
exercise hereof.
7. Charges, Taxes and
Expenses . If the Warrantholder exercises this Warrant, the
Company shall pay any issue or transfer tax due on the issue of any
Shares upon such exercise (other than taxes in respect of any
transfer occurring contemporaneously therewith or as a result of
the Warrantholder being a non-U.S. person). However, the
Warrantholder shall pay any such tax which is due because the
Warrantholder requests the shares to be issued upon exercise of
this Warrant in a name other than the Warrantholder’s name.
The Company may refuse to deliver the certificates representing the
Shares being issued upon exercise of this Warrant in a name other
than the Warrantholder’s name until the Company receives a
sum sufficient to pay any tax which will be due because the Shares
are to be delivered in a name other than the Warrantholder’s
name. The Company or its Subsidiaries shall have the right to
reduce the number of Shares that would otherwise be issued to the
Warrantholder by a number of Shares having an equivalent market
value (based on the Closing Price of the Common Stock) to the
amount required to satisfy any minimum withholding tax obligations
or any other federal, state or local income or other taxes required
by law to be withheld with respect to any payment of cash or
securities applicable to the Warrantholder.
8. Transfer/Assignment
.
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(a)
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This Warrant and any rights
hereunder are not transferable by the Warrantholder, in whole or in
part, in the absence of any effective registration statement
related to this Warrant except pursuant to an exemption from
registration under such Securities Act and applicable state
securities laws and, if requested by the Company (other than in the
case of a transfer by Mizuho CB pursuant to Rule 144A or Rule 144
under the Securities Act in accordance with Section 4.11 of
the Equity Holders Agreement upon delivery of the applicable
certificate referred to below), upon delivery of an opinion of
counsel, reasonably satisfactory in form and substance to the
Company, that such regist
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