FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE PENN TRAFFIC COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 25-0716800
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
1200 State Fair Boulevard
Syracuse, New York 13221
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Warrants to purchase common stock
par value $.01 per share
Page 1
This document consists of 4 pages.
The exhibit index is contained on page 4 of this document.
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Item 1. Description of Registrant's Securities to be Registered.
In connection with the effectiveness of The Joint Plan of
Reorganization of The Penn Traffic Company (the "Company") and certain of its
subsidiaries (the "Plan"), the Company will be issuing six-year warrants (the
"Warrants") to purchase 1,000,000 shares of common stock, par value $.01 per
share (the "Common Stock").
The Warrants will be exercisable immediately upon their date
of issuance. The Warrants will have an initial exercise price of $18.30 per
share (the "Exercise Price"), subject to certain adjustments and anti-dilution
protections briefly discussed below and more fully set forth in the form of
Warrant Agreement, dated as of June 29, 1999, between the Company and Harris
Trust and Savings Bank (the "Warrant Agreement") upon effectiveness of the Plan.
The Warrants may be exercised in whole or in part, at any time and from time to
time until the sixth anniversary of their date of issuance (the "Expiration
Date"). The Warrants will cease to be exercisable, terminate and become void on
the Expiration Date, and all rights under the Warrants and the Warrant Agreement
will cease at that time.
Under the Warrant Agreement, the Exercise Price, the number of
shares covered by each Warrant and the number of Warrants outstanding are
subject to adjustment from time to time as a result of the Company, among other
things, (i) declaring a dividend on shares of Common Stock payable in shares of
any class of capital stock of the Company, (ii) subdividing the outstanding
shares of Common Stock into a greater number of shares of Common Stock, (iii)
combining the outstanding shares of Common Stock into a smaller number of
shares, (iv) issuing any shares of capital stock in a reclassification of shares
of the Common Stock, (v) fixing a record date for the issuance of rights,
options, or warrants to all holders of Common Stock at an exercise price that is
less than the then current market price for the Common Stock, (vi) fixing a
record date for the making of a dividend or distribution to all holders of
Common Stock of any evidences of indebtedness or assets or subscription rights
or warrants, or (vii) consummating a tender offer for or otherwise repurchasing
or redeeming Common Stock.
The warrant agent for the Warrants is Harris Trust and Savings
Bank.
The foregoing is only a summary of significant terms and
provisions of the Warrants and as such is qualified in its entirety by reference
to the Warrant Agreement, a copy of which is attached hereto as Exhibit 1.
Page 2
<PAGE>
Item 2. Exhibits.
The following exhibits are filed as part of this Registration Statement
on Form 8-A:
1. Warrant Agreement dated as of June 29, 1999, between The Penn
Traffic Company and Harris Trust and Savings Bank, as warrant
agent.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this amended registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
THE PENN TRAFFIC COMPANY
By /s/ Martin A. Fox
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Date: June 29, 1999 Martin A. Fox
Vice Chairman-Finance
Page 3
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
1. Warrant Agreement dated as of June 29,
1999, between The Penn Traffic Company
and Harris Trust and Savings Bank, as
warrant agent.
Page 4
Exhibit 1
THE PENN TRAFFIC COMPANY
and
Harris Trust and Savings Bank,
Warrant Agent
Warrant Agreement
Dated as of June 29, 1999
<PAGE>
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of June 29, 1999, between THE PENN TRAFFIC
COMPANY, a Delaware corporation (the "Company"), and Harris Trust and Savings
Bank, an Illinois banking corporation, as warrant agent (the "Warrant Agent").
W I T N E S S E T H
WHEREAS, the Plan (as defined below) provides that the Company issue an
aggregate of 1,000,000 warrants (the "Warrants") entitling the holder or holders
thereof to purchase an aggregate of 1,000,000 shares of common stock, par value
$.01 per share, of the Company (the "Common Stock") upon the terms and subject
to the conditions hereinafter set forth; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange and exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Affiliate" has the meaning ascribed to in Rule 12b-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) "Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in New York or Illinois are authorized or
obligated by law or executive order to close.
(c) "Close of Business" on any given date means 5:00 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day it means 5:00 p.m., New York City time, on the next succeeding
Business Day.
(d) "Closing" means June 28, 1999.
(e) "Current Market Price", as of any date, with respect to a
share of Common Stock, shall be deemed to be the average closing price for the
ten consecutive trading days commencing before such date on the principal
national securities exchange or Nasdaq System on which the shares of Common
Stock or securities are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange or Nasdaq System, the
average of the reported bid and asked prices during such 10 trading day period
in the over-the-counter market as furnished by the National Quotation Bureau,
Inc., or, if such firm is not then engaged in the business of reporting such
prices, as furnished by any similar firm then engaged in such business selected
by the Company, or, if there is no such firm, as furnished by any member of the
National Association of Securities Dealers, Inc. selected by the Company or, if
the shares of Common Stock or securities are not publicly traded, the Current
Market Price shall be determined in good faith by the Board of Directors of the
Company.
(f) "Exercise Price" means the Initial Exercise Price as
adjusted from time to pursuant to Section 10 hereof.
<PAGE>
(g) "Initial Exercise Price" means $18.30 per share of Common
Stock.
(h) "Person" means an individual, corporation, association,
partnership, joint venture, trust, unincorporated organization, government or
political subdivision thereof or governmental agency or other entity.
(i) "Plan" means the Company's Plan of Reorganization as
approved by the Bankruptcy Court.
(j) "Warrant Certificate" means a certificate in substantially
the form attached as Exhibit 1 hereto representing such number of Warrants as is
indicated on the face thereof.
Section 2. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Warrant Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Warrant Agents as it may, in
its sole discretion, deem necessary or desirable.
Section 3. Form of Warrant Certificates. The Warrant Certificates
(together with the form of election to purchase Common Stock and the form of
assignment to be printed on the reverse thereof) shall be substantially in the
form of Exhibit 1 hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement and the Plan or as may be required to comply with any law or with
any rule or regulation made pursuant thereto, or to conform to usage.
Subject to the provisions of Section 21 hereof, the Warrant
Certificates, whenever issued, shall be dated the date of the Closing and on
their face shall entitle the registered holders thereof to purchase such number
of shares of Common Stock as shall be set forth therein at the Exercise Price,
subject to the adjustments as provided herein.
Section 4. Countersignature and Registration. The Warrant Certificates
shall be executed on behalf of the Company by its Chairman, its President or a
Vice President, either manually or by facsimile signature, and have affixed
thereto the Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person
who signed such Warrant Certificate had not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Warrant Certificate,
shall be a proper officer of the Company to sign such Warrant Certificate,
although at the date of the execution of this Warrant Agreement any such person
was not such an officer.
The Warrant Agent will keep or cause to be kept, at one of its offices
in New York City, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of warrants
evidenced on the face of each of such Warrant Certificate and the date of each
of such Warrant Certificate.
<PAGE>
Section 5. Transfer, Split Up, Combination and Exchange of Warrant
Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates. Subject
to the provisions of Section 13 hereof and the last sentence of this first
paragraph of Section 5 and subject to applicable law, rules or regulations,
restrictions on transferability that may appear on Warrant Certificates in
accordance with the terms hereof or any "stop transfer" instructions the Company
may give to the Warrant Agent, at any time after the close of business on the
date hereof, at or prior to the close of business on the Expiration Date (as
such term is hereinafter defined), any Warrant Certificate or Warrant
Certificates may be transferred, split up, combined or exchanged for another
Warrant Certificate or Warrant Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock as the Warrant Certificate or
Warrant Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Warrant Certificate shall make such request in writing delivered to the Warrant
Agent, and shall surrender the Warrant Certificate or Warrant Certificates to be
transferred, split up, combined or exchanged at the principal office of the
Warrant Agent. Thereupon the Warrant Agent shall, subject to the last sentence
of this first paragraph of Section 5, countersign and deliver to the person
entitled thereto a Warrant Certificate or Warrant Certificates, as the case may
be, as so requested. the Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Warrant Certificates, together
with reimbursement to the Company and the Warrant Agent of all reasonable
expenses incidental thereto.
Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity
or security in customary form and amount, and reimbursement to the Company and
the Warrant Agent of all reasonable expenses incidental thereto, and upon
surrender to the Warrant Agent and cancellation of the Warrant Certificate if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor to the Warrant Agent for delivery to the registered holder in lieu of the
Warrant Certificate so lost, stolen, destroyed or mutilated.
Section 6. Exercise of Warrants; Exercise Price; Expiration Date. (a)
The Warrants shall be exercisable commencing upon their date of issuance. The
Warrants shall cease to be exercisable and shall terminate and become void, and
all rights thereunder and under this Agreement shall cease, on the date (the
"Expiration Date") which is the sixth anniversary of the Closing. Subject to the
foregoing and to Section 6(b) below, the registered holder of any Warrant
Certificate may exercise the Warrants evidenced thereby in whole or in part upon
surrender of the Warrant Certificate, with the form of election to purchase on
the reverse thereof duly executed, to the Warrant Agent at the principal office
of the Warrant Agent in Chicago, Illinois, together with payment of the Exercise
Price in immediately available funds denominated in U.S. dollars for each share
of Common Stock as to which the Warrants are exercised.
(b) Upon receipt of a Warrant Certificate prior to the
Expiration Date, with the form of election to purchase duly executed,
accompanied by payment of the Exercise Price for the shares to be purchased and
an amount equal to any applicable tax or governmental charge referred to in
Section 10 in cash, or by certified check or bank draft payable to the order of
the Company, the Warrant Agent shall thereupon promptly (i) requisition from any
transfer agent of the Common Stock certificates for the number of whole shares
of Common Stock to be purchased, and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of the
issuance of fractional shares and (iii) after receipt of such certificates,
cause the same to be delivered to or upon the order of the registered holder of
such Warrant Certificate, registered in such name or names as may be designated
by such holder, and, when appropriate, after receipt promptly deliver such cash
to or upon the order of the registered holder of such Warrant Certificate. Upon
receipt by the Company of a Warrant Certificate at the principal office of the
Warrant Agent, with the form of election to purchase duly
<PAGE>
executed, and payment of the applicable Exercise Price as required hereby, the
holder of such Warrant Certificate shall be deemed to be the holder of record of
the shares of Common Stock issuable upon such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the holder of such Warrant Certificate.
In case the registered holder of any Warrant Certificate shall exercise
fewer than all Warrants evidenced thereby, a new Warrant Certificate evidencing
the number of Warrants equivalent to the number of Warrants remaining
unexercised shall be issued by the Warrant Agent to the registered holder of
such Warrant Certificate or to his duly authorized assigns, subject to the
provisions of Sections 5, 6(b) and 12 hereof.
Notwithstanding anything in this Agreement to the contrary, neither the
Warrant Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder of any Warrant Certificate upon the occurrence of
any purported exercise thereof unless the registered holder shall have completed
and signed the certificate contained in the form of election to purchase set
forth on the reverse side of the Warrant Certificate surrendered for exercise.
Section 7. Cancellation and Destruction of Warrant Certificates. All
Warrant Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any or
its agents, be delivered to the Warrant Agent for cancellation or in canceled
form, or, if surrendered to the Warrant Agent, shall be canceled by it, and no
Warrant Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Warrant Agreement. The Company shall
deliver to the Warrant Agent for cancellation and retirement, and the Warrant
Agent shall so cancel and retire, any other Warrant Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. The Warrant
Agent shall deliver all canceled Warrant Certificates to the Company, or shall,
at the written request of the Company, destroy such canceled Warrant
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
Section 8. Certain Representations; Reservation and Availability of
Shares of Common Stock or Cash.
(a) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and delivery
hereof by the Warrant Agent, constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its terms, and
the Warrants have been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Warrant Agent pursuant hereto,
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the benefits
hereof; except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors, rights generally or by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, the authorized capital stock of the
Company consists of not more than 30,000,000 shares of Common Stock, of which
20,106,955 shares of Common Stock are issued and outstanding, 1,000,000 shares
of Common Stock are reserved for issuance upon exercise of the Warrants and not
more than 2,297,000 shares of Common Stock are reserved for issuance upon
exercise of employee stock options and 1,000,000 shares of preferred stock, .01
per value per share, of which no shares are outstanding. There are no other
outstanding obligations, warrants, options or other rights to subscribe for or
purchase from the Company any class of capital stock of the Company.
<PAGE>
(c) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of Common
Stock or its authorized and issued shares of Common Stock held in its treasury,
free from preemptive rights, the number of shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding Warrants.
The Company covenants and agrees that it will take all such actions as
may be necessary to insure that all shares of Common Stock delivered upon
exercise of Warrants shall, at the time of delivery of the certificates for such
shares (subject to payment of the Exercise Price as contemplated by Section
6(b)), be duly authorized, validly issued, fully paid and nonassessable.
The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges which may be
payable in respect of the original issuance or delivery of the Warrant
Certificates or certificates evidencing Common Stock upon exercise of the
Warrants. The Company shall not, however, be required to pay any tax or
governmental charge which may be payable in respect of any transfer involved in
the transfer or delivery of Warrant Certificates or the issuance or delivery of
certificates for Common Stock in a name other than that of the registered holder
of the Warrant Certificate evidencing Warrants surrendered for exercise or to
issue or deliver any certificate for shares of Common Stock upon the exercise of
any Warrants until any such tax or governmental charge shall have been paid (any
such tax or governmental charge being payable by the holder of such Warrant
Certificate at the time of surrender) or until it has been established to the
Company's reasonable satisfaction that no such tax or governmental charge is
due.
Section 9. Common Stock Record Date. Each person in whose name any
certificate for shares of Common Stock is issued upon the exercise of Warrants
shall for all purposes be deemed to have become the holder of record for the
Common Stock represented thereby on, and such certificate shall be dated, the
date upon which the Warrant Certificate evidencing such the Company Warrants was
duly surrendered and payment of the Exercise Price (and any applicable transfer
taxes) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Common Stock transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding business day
on which the Common Stock transfer books of the Company are open.
Section 10. Adjustment of Exercise Price, Number of Shares of Common
Stock or Number of the Company Warrants. The Exercise Price, the number of
shares covered by each Warrant and the number of Warrants outstanding are
subject to adjustment from time to time as provided in this Section 10.
(a) In the event the Company shall at any time after the date
of this Agreement (i) declare a dividend on shares of Common Stock payable in
shares of any class of capital stock of the Company, (ii) subdivide the
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (iii) combine the outstanding shares of Common Stock into a smaller
number of shares, or (iv) issue any shares of capital stock in a
reclassification of shares of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or distribution or of the effective date of
such subdivision, combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be proportionately adjusted
so that the holder of any Warrant exercised after such time shall be entitled to
receive the aggregate number and kind of shares of capital stock which, if such
Warrant had been exercised immediately prior to such date and at a time when the
Common Stock transfer books of the Company were open, such holder would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification.
<PAGE>
(b) In the event the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common Stock (such
rights, options or warrants not being available to holders of Warrants)
entitling them (for a period expiring within 45 calendar days after such date of
issue) to subscribe for or purchase Common Stock (or securities convertible into
or exercisable or exchangeable for Common Stock), other than Permitted
Issuance's (as defined below), at a price per share of Common Stock (or having a
conversion, exercise or exchange price per share of Common Stock, in the case of
a security convertible into or exercisable or exchangeable for Common Stock)
less than the Current Market Price per share of Common Stock on such record date
(or, if there has been no such determination, then the Company must promptly
cause such determination to be made as contemplated by the definition of
"Current Market Price" set forth herein, and any proposed record date must be
postponed until after such determination has been made), the Exercise Price to
be in effect after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding on
such record date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so to be offered
(or the aggregate initial conversion, exercise or exchange price of the
convertible, exercisable or exchangeable securities so to be offered) would
purchase at such Current Market Price and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock to be offered for subscription or purchase
(or into which the convertible, exercisable or exchangeable securities so to be
offered are initially convertible, exercisable or exchangeable). In case such
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company. Such
adjustment shall be made successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so issued the Exercise Price
shall be adjusted to be the Exercise Price which would then be in effect if such
record date had not been fixed. For purposes of this paragraph (b), "Permitted
Issuance's" shall mean any and all issuances of shares of Common Stock or
rights, options or warrants entitling the holders thereof to subscribe for or
purchase Common Stock (or securities convertible into or exercisable or
exchangeable for Common Stock) pursuant to any stock option, stock purchase or
other employee, officer, or director benefit plan of the Company or any of its
subsidiaries in effect on the Closing Date or thereafter approved by
shareholders, provided, however, that the number of shares subject to all such
Permitted Issuances shall not exceed 15% of the Common Stock on a fully-diluted
basis.
(c) In the event the Company shall fix a record date for the
making of a dividend or distribution to all holders of Common Stock of any
evidences of indebtedness or assets or subscription rights or warrants
(excluding those referred to in Section 10 (a) or (b) or other dividends paid
out of retained earnings, the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction of which the numerator shall be the
Current Market Price per share of Common Stock on such record date, less the
fair market value (as determined in good faith by the Board of Directors of the
Company) of such distribution applicable to one share of Common Stock, and of
which the denominator shall be such Current Market Price per share of Common
Stock. Such adjustment shall be made successively whenever such a record date is
fixed, and in the event that such distribution is not so made, the Exercise
Price shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
(d) In the event the Company shall consummate a tender offer
for or otherwise repurchase or redeem Common Stock, to the extent that the cash
and value of any other consideration included in such payment per share of
Common Stock exceeds the Current Market Price per share of Common Stock on the
trading day next succeeding the Expiration Time (as defined below), unless the
Company tenders for the Warrants on terms which give effect to such excess
consideration, the
<PAGE>
Exercise Price shall be reduced so that the same shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to the
last time tenders or repurchases or redemptions may be made pursuant to such
tender or repurchase or redemption (the "Expiration Time") by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding
(including any tendered, repurchased or redeemed shares) on the Expiration Time
multiplied by the Current Market Price per share of the Common Stock on the
trading day next succeeding the Expiration Time, and the denominator shall be
the sum of (A) the fair market value of the aggregate consideration payable to
shareholders based on the acceptance of all shares validly tendered, repurchased
or redeemed and not withdrawn as of the Expiration Time (the shares deemed so
accepted being referred to as the "Purchased Shares") and (B) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price per share of the Common Stock on
the trading day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time. For purposes of this paragraph (d), the value of non-cash
consideration shall be as determined in good faith by the Board of Directors of
the Company.
(e) Notwithstanding the foregoing paragraphs (a), (b), (c) and
(d), no adjustment in the Exercise Price pursuant to such paragraphs shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this Section 10(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 10 shall be made to the nearest cent or the nearest hundredth of a
share, as the case may be.
(f) In the event that at any time, as a result of an
adjustment made pursuant to Section 10(a), the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, thereafter the number of such other
shares so receivable upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares contained in Section 10(a), (b),
(c) and (d), and the provisions of Sections 6, 8, 9 and 12 with respect to the
shares of Common Stock shall apply on like terms to any such other shares.
(g) All Warrants originally issued by the Company subsequent
to any adjustment made to the Exercise Price hereunder shall evidence the right
to purchase, at the adjusted Exercise Price, the number of shares of Common
Stock purchasable from time to time hereunder upon exercise of the Warrants, all
subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 10(l), upon each adjustment of the Exercise Price as a
result of the calculations made in Section 10(b), (c) and (d), each Warrant
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares (calculated to the nearest hundredth) obtained by (i) multiplying (x) the
number of shares covered by a Warrant immediately prior to such adjustment by
(y) the Exercise Price in effect immediately prior to such adjustment of the
Exercise Price and (ii) dividing the product so obtained by the Exercise Price
in effect immediately after such adjustment of the Exercise Price.
(i) The Company may elect on or after the date of any
adjustment of the Exercise Price to adjust the number of Warrants, in
substitution for any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for one
share of Common Stock. Each Warrant held of record prior to such adjustment of
the number of Warrants shall become that number of Warrants (calculated to the
nearest hundredth) obtained by dividing the Exercise Price in effect prior to
adjustment of the Exercise Price by the Exercise Price in effect after
adjustment
<PAGE>
of the Exercise Price. The Company shall instruct the Warrant Agent to notify
each of the record holders of Warrants of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known at the
time, the amount of adjustment to be made. Such record date may be the date on
which the Exercise Price is adjusted or any day thereafter, but shall be at
least 10 days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this Section 10(k), the Company
shall instruct the Warrant Agent to distribute, as promptly as practicable, to
holders of record of Warrant Certificates on such record date Warrant
Certificates evidencing, subject to Section 13, the additional Warrants to which
such holders shall be entitled as a result of such adjustment, or, at the option
of the Company, instruct the Warrant Agent to distribute to such holders of
record in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if required
by the Company, new Warrant Certificates evidencing all the Warrants to which
such holders shall be entitled after such adjustment. Warrant Certificates so to
be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Exercise Price) and shall be registered in the names of the holders of record of
Warrant Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Exercise
Price or the number of shares of Common Stock issuable upon the exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued may
continue to express the Exercise Price per share and the number of shares which
were expressed upon the initial Warrant Certificates issued hereunder.
(k) The Company agrees that it will not, by amendment of its
Certificate of Incorporation or through reorganization, consolidation, merger,
dissolution or sale of assets, or by any other voluntary act, avoid or seek to
avoid the observance or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by the Company. Before taking
any action that would cause an adjustment reducing the Exercise Price below the
then par value, if any, of the shares of Common Stock issuable upon exercise of
the Warrants, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may, at the
option of the Company in its sole discretion, either (i) validly and legally
issue fully paid and nonassessable shares of such Common Stock or (ii) pay the
equivalent amount of cash, at such adjusted Exercise Price.
(l) In any case in which this Section 10 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, if any holder of a Warrant exercises such Warrant after such
record date, the Company may elect to defer, until the occurrence of such event,
the issuance of the shares of Common Stock and other capital stock of the
Company in excess of the shares of Common Stock and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares and/or other capital
securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 10 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Exercise Price, in addition to those adjustments expressly required by this
Section 10, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any event treated for federal income tax purposes
as a distribution of stock or stock rights shall not be taxable to the
recipients.
Section 11. Certification of Adjusted Exercise Price or Number of
Shares of Common Stock. Whenever the Exercise Price or the number of shares of
Common Stock issuable upon the exercise of each Warrant is adjusted as provided
in Section 10 or 12, the Company shall (a) promptly
<PAGE>
prepare a certificate setting forth the Exercise Price of each Warrant as so
adjusted, and a brief statement of the facts accounting for such adjustment, (b)
promptly file with the Warrant Agent and with each transfer agent for the Common
Stock a copy of such certificate and (c) instruct the Warrant Agent to mail, at
the expense of the Company, a brief summary thereof to each holder of a Warrant
Certificate. The Warrant Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall not be obligated
or responsible for calculating any adjustment nor deemed to have knowledge of
such adjustment unless and until it shall have received such certificate.
Section 12. Reclassification, Consolidation, Purchase, Combination,
Sale or Conveyance. In case any of the following shall occur while any Warrants
are outstanding: (i) any reclassification or change of the outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or as covered by Section 10 (a)), or (ii) any consolidation, merger or
combination of the Company with or into another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common stock, or (iii) any sale or conveyance of the property or assets of the
Company as, or substantially as, an entirety to any other entity as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company, or such successor corporation or
transferee, as the case may be, shall make appropriate provision by amendment of
this Agreement or by the successor corporation or transferee executing with the
Warrant Agent an agreement so that the holders of the Warrants then outstanding
shall have the right at any time thereafter, upon exercise of such Warrants (in
lieu of the number of shares of Common Stock theretofore deliverable) to receive
the kind and amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
as would be received by a holder of the number of shares of Common Stock
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance.
If the holders of the Common Stock may elect from choices the kind or
amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, combination, sale or conveyance, then
for the purpose of this Section 12 the kind and amount of securities, cash and
other property receivable upon such reclassification, consolidation, merger,
combination, sale or conveyance shall be deemed to be the choice specified by
the holder of the Warrant, which specification shall be made by the holder of
the Warrant by the later of (A) 20 calendar days after the holder of the Warrant
is provided with a final version of all information required by law or
regulation to be furnished to holders of Common Stock concerning such choice, or
if no such information is required, 20 days after the Company notified the
holder of the Warrant of all material facts concerning such specification and
(B) the last time at which holders of Common Stock are permitted to make their
specification known to the Company. If the holder of the Warrant fails to make
any specification, the holder's choice shall be deemed to be whatever choice is
made by a plurality of holders of Common Stock not affiliated with the Company
or any other party to the reclassification, consolidation, merger, combination,
sale or conveyance. Such adjusted Warrants shall provide for adjustments which,
for events subsequent to the effective date of such new Warrants, shall be as
nearly equivalent as may be practicable to the adjustments provided for in
Section 10 and this Section 12. The above provisions of this Section 12 shall
similarly apply to successive reclassifications, consolidations, mergers,
combinations, sales or conveyances.
The Company shall instruct the Warrant Agent to mail by first-class
mail, postage prepaid, at the expense of the Company, to each registered holder
of a Warrant, written notice of the execution of any such amendment, supplement
or agreement. Any supplemented or amended agreement entered into by the
successor corporation or transferee shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
Section 10. The Warrant Agent
<PAGE>
shall be under no responsibility to determine the correctness of any provisions
contained in such agreement relating either to the kind or amount of securities
or other property receivable upon exercise of warrants or with respect to the
method employed and provided therein for any adjustments and shall be entitled
to rely upon the provisions contained in any such agreement. The provisions of
this Section 12 shall similarly apply to successive reclassifications, changes,
consolidations, mergers, sales and conveyances of the kind described above.
Section 13. Fractional Shares of Common Stock. (a) The Company may, but
shall not be required to, issue fractions of Warrants or distribute Warrant
Certificates which evidence fractional Warrants. In lieu of such fractional
warrants, there shall be paid to the persons to whom Warrant Certificates
representing such fractional Warrants would otherwise be issuable an amount in
cash (without interest) equal to the product of such fraction of a Warrant
multiplied by the Current Market Price per share of Common Stock issuable with
respect to such fraction of a Warrant.
(b) The Company may, but shall not be required to, issue
fractions of shares of Common Stock upon exercise of warrants or distribute
stock certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash (without interest) equal to the product of such
fractional part of a share of Common Stock multiplied by the Current Market
Price per share of Common Stock.
(c) The holder of a Warrant by the acceptance of the Warrant
expressly waives his right to receive any fractional Warrant or any fractional
share of Common Stock upon exercise of a Warrant.
Section 14. Right of Action. All rights of action in respect of this
Agreement, except the rights of action given to the Warrant Agent under Section
17 hereof, are vested in the respective registered holders of the Warrant
Certificates, and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of the holder of any other Warrant Certificate,
may, on such holder's own behalf and for such holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the
Warrants evidenced by such warrant Certificate in the manner provided in such
Warrant Certificate and in this Agreement.
Section 15. Agreement of Warrant Certificate Holders. Every holder of a
Warrant Certificate by accepting the same consents and agrees with the Company
and the Warrant Agent and with every other holder of a Warrant Certificate that:
(a) the Warrant Certificates are transferable only on the
registry books of the Warrant Agent if surrendered at the principal office of
the warrant Agent, duly endorsed or accompanied by a proper instrument of
transfer; and
(b) the Company and the Warrant Agent may deem and treat the
person in whose name the Warrant Certificate is registered as the absolute owner
thereof and of the Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificates made by anyone other than the
Company or the Warrant Agent) for all purposes whatsoever, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
Notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Warrant Agent shall have any liability to any holder of a
Warrant or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court or by a
governmental, regulatory or administrative agency or commission, or any statute,
rule, regulation or executive order
<PAGE>
promulgated or enacted by any governmental authority prohibiting or otherwise
restraining performance of the obligation; provided, however, the Company must
use its best efforts to have any order, decree or ruling lifted or otherwise
overturned.
Section 16. Warrant Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Warrant Certificate shall be entitled to vote, receive
dividends or distributions on, or be deemed for any purpose the holder of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise or conversion of the Warrants represented thereby, nor shall
anything contained herein or in any Warrant Certificate be construed to confer
upon the holder of any Warrant Certificate, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting shareholders (except as provided in Section 23), or to
receive dividends or distributions or subscription rights, or otherwise, until
the Warrant or Warrants evidenced by such Warrant Certificate shall have been
exercised in accordance with the provisions hereof.
Section 17. Concerning the Warrant Agent. The Company agrees to pay to
the Warrant Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Warrant Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Warrant Agent for, and to
hold it harmless against, any loss, liability or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the Warrant Agent,
for anything done or omitted by the Warrant Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the premises. The costs
and expenses of enforcing this right of indemnification shall also be paid by
the Company. The indemnification provided for hereunder shall survive the
expiration of the Warrants and termination of this Agreement.
The Warrant Agent may conclusively rely upon and shall be protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this Agreement in
reliance upon any Warrant Certificate or certificate for Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document reasonably believed by it to
be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Warrant Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits)
regardless of the form of the action, even if the Warrant Agent has been advised
of the likelihood of such loss or damage.
Section 18. Purchase or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent or any successor Warrant
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Warrant Agent or any
successor Warrant Agent shall be party, or any corporation succeeding to the
corporate trust business of the Warrant Agent or any successor Warrant Agent,
shall be the successor to the Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 20. In case at the
time such successor Warrant Agent shall succeed to the agency created by this
Agreement any of the Warrant Certificates shall have been countersigned but not
delivered, any such successor Warrant Agent may adopt the countersignature of
the predecessor Warrant Agent and deliver such Warrant Certificates so
<PAGE>
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, any successor Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent or in
the name of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates and
in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
Section 19. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions and no implied duties or obligations shall be read into this
Agreement against the Warrant Agent except for the duty of good faith, by all of
which the Company and the holders of Warrant Certificate, by their acceptance
thereof, shall be bound:
(a) Before the Warrant Agent acts or refrains from acting, the
Warrant Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Warrant Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman, President or any
Vice President of the Company and by the Treasurer or any Assistant Treasurer or
the Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authentication to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Warrant Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in the
Warrant Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant Certificate;
nor shall it be responsible for the adjustment of the Exercise Price or the
making of any change in the number of shares of Common Stock required under the
provisions of Sections 10 or 12 or responsible for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would
require any such adjustment or change (except with respect to the exercise of
Warrants evidenced by Warrant
<PAGE>
Certificates after actual notice of any adjustment of the Exercise Price); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether
any shares of Common Stock will, when issued, be duly authorized, validly
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
by the Warrant Agent of the provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman or the President or any Vice President or the Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer. Any application by the Warrant Agent for written instructions from the
Company may, at the option of the Warrant Agent, set forth in writing any action
proposed to be taken or omitted by the Warrant Agent under this Agreement and
the date on or after which such action shall be taken or such omission shall be
effective. The Warrant Agent shall not be liable for any action taken by or
omission of, the Warrant Agent in accordance with a proposal included in any
such application on or after the date specified in such application (which date
shall not be less than ten Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking any such action
(or the effective date in the case of an omission), the Warrant Agent shall have
received written instructions in response to such application that such action
or omission shall not be taken or made.
(h) The Warrant Agent and any shareholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent form acting in any other capacity for the Company or for any other legal
entity.
(i) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorney or agents, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorney or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Warrant
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of such
funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) The Warrant Agent shall not be required to take notice or
be deemed to have any notice of any fact, event or determination under this
Agreement unless and until the Warrant Agent shall be specifically notified in
writing by the Company of such fact, event or determination.
<PAGE>
(l) If, with respect to any Warrant Certificate surrendered to
the Warrant Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has not been
completed, the Warrant Agent shall contact the Company and the surrendering
party promptly and shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
Section 20. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company and to each transfer agent of the Common Stock by
registered or certified mail, and to the holders of the Warrant Certificates by
first-class mail at the expense of the Company. The Company may remove the
Warrant Agent or any successor Warrant Agent upon 30 days' notice in writing,
mailed to the Warrant Agent or successor Warrant Agent, as the case may be, and
to each transfer agent of the Common Stock by registered or certified mail, and
to the holders of the Warrant Certificates by first-class mail. If the Warrant
Agent shall resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for
inspection by the Company), then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Warrant Agent. Any successor Warrant Agent, whether appointed by the
Company or by such a court, shall be a corporation organized and doing business
under the laws of the United States or of a state thereof, in good standing,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Warrant Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed; but
the predecessor Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Warrant Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to the
registered holders of the Warrant Certificates. However, failure to give any
notice provided for in this Section 20, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the Warrant Agent or
the appointment of the successor Warrant Agent, as the case may be.
Section 21. Issuance of New Warrant Certificates. Notwithstanding any
of the provisions of this Agreement or of the Warrants to the contrary, the
Company may, at its option, issue new Warrant Certificates evidencing Warrants
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price per share and the number or kind or
class of shares of stock or other securities or property purchasable under the
several Warrant Certificates made in accordance with the provisions of this
Agreement.
Section 22. Notices. Notices or demands authorized by this Agreement to
be given or made (i) by the Warrant Agent or by the holder of any Warrant
Certificate to or on the Company, (ii) subject to the provisions of Section 20,
by the Company or by the holder of any Warrant Certificate to or on the Warrant
Agent or (iii) by the Company or the Warrant Agent to the holder of any Warrant
Certificate, shall be sufficiently given or made if sent by hand delivery,
overnight courier, registered or certified mail and shall be deemed given upon
receipt in each case to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) If to the Company, to:
<PAGE>
The Penn Traffic Company
1200 State Fair Boulevard
Syracuse, New York 13221
Attention: Francis D. Price, Jr.
Telephone: (315) 461-2347
Telecopy: (315) 461-2532
with a copy to:
The Penn Traffic Company
411 Theodore Fremd Avenue
Rye, New York 10580
Attention: Martin A. Fox
Telephone: (914) 921-3000
Telecopy: (914) 921-3031
<PAGE>
(b) If to the Warrant Agent, to:
Harris Trust & Saving Bank
311 West Monroe Street - 11th Floor
Chicago, Illinois 60606
Attention: Reorganization Department
Telephone: (312) 461-4065
Telecopy: (312) 765-8052
(c) If to the holder of any Warrant Certificate, to the
address of such holder as shown on the registry books of the Company. Any notice
required to be delivered by the Company to the registered holder of any Warrant
may be given by the Warrant Agent on behalf of the Company.
Section 23. Supplements and Amendments. (a) The Company and the Warrant
Agent 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 other provisions herein, or to make any other
provisions with regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Warrants Certificates.
(b) In addition to the foregoing, with the consent of holders
of Warrants entitled, upon exercise thereof, to receive not less than a majority
of the shares of Common Stock issuable thereunder, the Company and the Warrant
Agent may modify this Agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Warrant
Agreement or modifying in any manner the rights of the holders of the Warrant
Certificates; provided, however, that no modification of the terms (including
but not limited to the adjustments described in Section 10) upon which the
Warrants are exercisable or reducing the percentage required for consent to
modification of this Agreement may be made without the consent of the holder of
each outstanding warrant certificate affected thereby.
Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of the Warrant Agent
under this Agreement will be effective against the Warrant Agent without the
execution of such supplement or amendment by the Warrant Agent.
Section 24. Successors. All covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
Section 25. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give any Person other than the Company, the Warrant Agent and
the registered holders of the Warrant Certificates any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrant Certificates.
Section 26. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York without giving effect to the conflicts of law
principles thereof.
<PAGE>
Section 27. Counterparts. 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 all such counterparts shall together constitute but one
and the same instrument.
Section 28. Captions. The captions of the sections of this Agreement
have been inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 29. Information. The Company agrees to promptly provide the
registered holders of the Warrants the information it is required to provide to
the holders of the Common Stock.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunder affixed and
attested, all as of the day and year first above written.
THE PENN TRAFFIC COMPANY
By:_________________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK, as Warrant Agent
By:_________________________________
Name:
Title:
