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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASS OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Richfood Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Virginia 54-1438602
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
4860 Cox Road, Suite 300, Glen Allen, Virginia 23060
(Address of Registrant's principal executive offices) (Zip Code)
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If this form relates to the registration If this form relates to the registration
of a class of securities pursuant to of a class of securities pursuant to
Section 12(b) of the Exchange Act and is Section 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A.(c), please check the Instruction A.(d), please check the
following box. [ ] following box. [x]
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Securities Act registration statement file number to which this form
relates: _______________________
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered: each class is to be registered:
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None
Securities to be registered pursuant to Section 12(g) of the Act:
Warrants to purchase Nasdaq National Market
common stock
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Item 1. Description of Registrant's Securities to Be Registered.
This Registration Statement relates to warrants (the "Warrants") to
purchase an aggregate of 1,500,000 shares of common stock, without par value
(the "Common Stock"), of Richfood Holdings, Inc., a Virginia corporation (the
"Registrant").
As of November 26, 1997, the Registrant entered into a definitive Asset
Purchase Agreement pursuant to which a wholly owned subsidiary of the Registrant
will acquire substantially all of the assets and assume certain liabilities of
Farm Fresh, Inc., a privately held supermarket chain headquartered in Norfolk,
Virginia (the "Farm Fresh Acquisition"). A portion of the purchase price is to
consist of the Warrants. The following discussion of certain terms and
provisions of the Warrants is qualified in its entirety by reference to the
detailed provisions of the Warrant Agreement, which is filed as an exhibit
hereto and incorporated herein by reference.
Upon issuance, each Warrant will entitle the registered owner thereof
to purchase one share of Common Stock at an exercise price of $25.00 per share
(the "Exercise Price"), subject to adjustment upon the occurrence of certain
events discussed below. The Warrants will expire on the fifth anniversary of the
closing date of the Farm Fresh Acquisition (the "Expiration Date"), which is
expected to occur in early March 1998. Prior to the registration of the
Warrants, the Registrant had no warrants outstanding.
The Warrants will be protected against dilution in the event that the
Registrant (i) effects a stock split or a reverse stock split, (ii) pays a
dividend or other distribution on its Common Stock in the form of additional
shares of Common Stock or (iii) issues rights, options or warrants to holders of
shares of Common Stock entitling them to purchase additional shares of Common
Stock at less than the then-current market price per share. In the event that
the Registrant distributes to all holders of Common Stock any shares of capital
stock of the Registrant (other than Common Stock), evidences of its indebtedness
or other rights, options or warrants to subscribe for or purchase any shares of
capital stock of the Registrant (other than Common Stock and excluding those
rights, options or warrants described in the preceding sentence), or other
assets, other than cash dividends (collectively, the "Property"), then, in each
such case, (i) unless the Registrant elects to reserve such Property for
distribution to the Warrantholders upon the exercise of the Warrants so that any
such holder exercising his Warrants will receive upon such exercise, in addition
to the shares of Common Stock to which such holder is entitled, the amount and
kind of such Property that such holder would have received if such holder had,
immediately prior to the record date for the distribution of the Property,
exercised the Warrants, the Exercise Price shall be adjusted so that the same
shall equal the price determined by multiplying the Exercise Price in effect
immediately prior to the date of such distribution by a fraction, the numerator
of which shall be the then-current market price per share of Common Stock less
the then fair market value of the portion of the Property so distributed
allocable to one share of Common Stock, and the denominator of which shall be
the then-current market price per share of Common Stock or (ii), in the event
that the then fair market value of the Property allocable to one share of Common
Stock is equal to or exceeds the current market price of one share of Common
Stock, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Warrantholder shall have the right to receive the amount and kind of
Property such holder would have received had he exercised each such Warrant
immediately prior to the record date for the distribution of the Property.
If the Registrant (i) pays any cash dividend or (ii) repurchases any
shares of Common Stock at a per share premium to the then current market price
per share (a "Repurchase Premium") which, in either instance, when combined with
all cash dividends and Repurchase Premiums paid by the Registrant after January
10, 1998 exceeds the sum of (A) $35,000,000, plus (B) 50% of the Registrant's
consolidated net income after January 10, 1998 (an "Excess Distribution"), the
Exercise Price shall be adjusted by multiplying the Exercise Price then in
effect by a fraction, (i) the numerator of which shall equal (Y) the market
price per share of the Common Stock on the record date for such dividend or the
effective date of such repurchase minus (Z) the quotient obtained by dividing an
amount equal to the Excess Distribution by the number of shares of Common Stock
outstanding on such record date or immediately after giving effect to such
repurchase, and (ii) the denominator of which shall equal the market price per
share of Common Stock on such record or effective date.
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No adjustment to the Exercise Price shall be required until cumulative
adjustments amount to 1% or more of the Exercise Price as last adjusted.
In the case of any (i) reclassification or change in the outstanding
shares of Common Stock, (ii) consolidation, merger or combination to which the
Registrant is a party (other than a consolidation, merger or combination in
which the Registrant is the surviving corporation and which does not result in
the reclassification or change in the outstanding shares of Common Stock) or
(iii) sale, conveyance or lease of all or substantially all of the properties or
assets of the Registrant as a result of which the holders of Common Stock shall
become entitled to receive stock, securities or other property or assets in
exchange for Common Stock, the holders of Warrants shall have the right, upon
exercise of the Warrants, to convert the Warrants into the kind and amount of
shares of stock and other securities and property or assets receivable upon such
reclassification, change, consolidation, merger, combination, sale, conveyance
or lease as would be received by a holder of the number of shares of Common
Stock issuable upon exercise of the Warrants immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease.
The holders of the Warrants, as such, are not entitled to vote, receive
dividends or to exercise any of the rights of holders of Common Stock for any
purpose until such Warrants have been duly exercised and payment of the Exercise
Price shall have been made.
It is anticipated that the Warrants will be issued in accordance with
an order confirming the Joint Plan of Reorganization, filed by Farm Fresh, Inc.
and its parent, FF Holdings Corporation, in the United States Bankruptcy Court
for the District of Delaware on January 7, 1998, pursuant to Chapter 11 of the
Bankruptcy Code. Accordingly, the offer and sale of the Warrants and the
underlying Common Stock issuable upon the exercise thereof will be exempt from
the registration requirements of the Securities Act of 1933, as amended,
pursuant to Section 1145 of the Bankruptcy Code.
Item 2. Exhibits.
1. Form of Warrant Agreement between Richfood Holdings, Inc. and First Union
National Bank of North Carolina, including form of Warrant Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this Registration
Statement on Form 8-A to be signed on its behalf by the undersigned, thereunto
duly authorized.
Richfood Holdings, Inc.
Dated: February 17, 1998 By: /s/ John C. Belknap
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John C. Belknap
Executive Vice President, Chief
Financial Officer and Secretary
Exhibit 1
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RICHFOOD HOLDINGS, INC.
and
FIRST UNION NATIONAL BANK
As Warrant Agent
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Warrant Agreement
Dated as of March __, 1998
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RICHFOOD HOLDINGS, INC.
WARRANT AGREEMENT, dated as of March __, 1998, between
Richfood Holdings, Inc., a Virginia corporation (the "Company") and First Union
National Bank, as Warrant Agent (the "Warrant Agent").
WHEREAS, pursuant to the Asset Purchase Agreement, dated as of
November 26, 1997 (the "Purchase Agreement"), by and among Farm Fresh, Inc., a
Virginia corporation ("Farm Fresh"), the Company and FF Acquisition, Inc., a
Virginia corporation (the "Buyer"), the Company has agreed to purchase
substantially all of the assets of, and assume certain liabilities of, Farm
Fresh for an Initial Purchase Price (as defined in the Purchase Agreement)
consisting of cash and Common Stock Purchase Warrants (the "Warrants" or
individually a "Warrant") representing the right to purchase an aggregate
1,500,000 shares of the Company's Common Stock, without par value (the "Common
Stock"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates";
WHEREAS, the Warrants shall be issued in accordance with the
Final Order confirming the Plan in the Bankruptcy Case (each as defined in the
Purchase Agreement) and, accordingly, the offer and sale of the Warrants and the
shares of Common Stock issuable upon the exercise thereof are exempt from the
registration requirements of the Securities Act of 1933, as amended, pursuant to
11 U.S.C. ss. 1145 ("Section 1145"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced.
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. The Warrants shall be
delivered by the Buyer at the Closing contemplated in the Purchase Agreement and
shall constitute a portion of the Initial Purchase Price. The Plan and the Final
Order (as applicable) shall provide, among other things, that: (i) Section
1145(a) is applicable to the offer, issuance and sale of the Warrants and the
Common Stock issuable upon the exercise thereof; (ii) the Company is a successor
of Farm Fresh, within the meaning of Section 1145, and is issuing and
distributing the Warrants in exchange for claims against or interests in Farm
Fresh; (iii) the offer, issuance and sale of the Warrants and the Common Stock
issuable upon the exercise thereof was made in good faith within the meaning of
11 U.S.C. ss.1125(e); and (iv) the Common Stock issuable upon exercise of the
Warrants, when issued in accordance with the terms of this Agreement, shall be
validly issued, fully paid and non-assessable. The Warrants delivered at Closing
shall be registered in the name of Seller or such assignees as may be designated
in or pursuant to the Plan. Each Warrant shall represent the right, on the terms
and subject to the provisions contained herein and therein, to purchase at any
time during the term specified in Section 2.2 hereof one share of Common Stock
for the Warrant Price (as defined in Section 2.1 hereof). The number of shares
of Common Stock issuable upon exercise of a Warrant, and the Warrant Price, are
subject to adjustment from time to time as provided in Article II hereof.
SECTION 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form and
substantially in the form set forth in Exhibit A hereto, shall be dated March
__, 1998, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or inter-dealer quotation system on which the
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Warrants may be listed, or to conform to customary commercial usage. The Warrant
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, any Vice Chairman, the President, any Executive Vice President, any
Senior Vice President, any Managing Director or any Vice President and by the
Secretary or any Assistant Secretary under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signatures shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
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The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose.
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase up to 1,500,000 shares of Common
Stock (except as provided in Sections 1.4, 3.2, 4.2 and 5.1) may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase up to 1,500,000 shares of Common Stock and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such issuance of
the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Warrant Certificates, the Company shall execute and
the Warrant Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants. Until
so exchanged, the temporary Warrant Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
SECTION 1.5. Listing for Trading. The Warrants have been
approved for inclusion in the National Market System of the National Association
of Securities Dealers Automated Quotation System ("Nasdaq") upon official notice
of issuance. The Company covenants that it will use its best efforts to maintain
the inclusion of the Warrants in such National Market System, or the listing of
the Warrants on a national securities exchange, at all times through the
Expiration Date.
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ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. The exercise price of each Warrant
will be $25.00, subject to adjustment as provided herein (the "Warrant Price").
Except as provided in Section 3.1 hereof, no adjustment shall be made for any
dividends on shares of Common Stock issuable upon exercise of any Warrants.
SECTION 2.2. Duration of Warrants. Subject to extension as set
forth in Section 2.6 hereof, each Warrant may be exercised by the holder thereof
in whole, as specified herein, at any time after 5:00 P.M. New York City time,
on March __, 1998, and at or before 5 P.M., New York City time, on March __,
2003 (the "Expiration Date"). Each Warrant not exercised at or before 5 P.M.,
New York City time, on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease.
SECTION 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole
number of Warrants may be exercised by providing certain information as set
forth on the reverse side of the Warrant Certificate, and by paying in full the
Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt within five
business days of such payment by the Warrant Agent of the Warrant Certificate
with the form of election to purchase shares of Common Stock set forth on the
reverse side of the Warrant Certificate properly completed and duly executed.
The Warrant Price will be payable in lawful money of the United States of
America in cash or by certified check or official bank check or by bank wire
transfer, in each case in immediately available funds. The date on which payment
in full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of each
day on which a payment for the exercise of Warrants is received of the amount of
cash so deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the shares of Common Stock to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise
and (iv) such other information as the Company shall reasonably require.
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(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue to the holder of the Warrant Certificate
evidencing such Warrant the shares of Common Stock to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of shares of Common Stock and, in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Common Stock until such tax or other charge shall have been paid
or it has been established to the Company's satisfaction that no such tax or
other charge is due.
SECTION 2.4. No Fractional Shares to Be Issued.
Notwithstanding anything to the contrary contained in this Agreement, if the
number of shares of Common Stock purchasable on the exercise of each Warrant is
not a whole number, the Company shall not be required to issue any fraction of a
share of Common Stock or to distribute stock certificates that evidence
fractional shares of Common Stock or to issue a Warrant Certificate representing
a fractional Warrant upon exercise of any Warrants. If Warrant Certificates
evidencing more than one Warrant shall be surrendered for exercise at one time
by the same holder, the number of full shares that shall be issuable upon
exercise thereof shall be computed on the basis of the aggregate number of
Warrants so surrendered. If any fraction of a share of Common Stock would,
except for the provisions of this Section 2.4, be issuable on the exercise of
any Warrant or Warrants, the Company shall purchase such fraction for an amount
in cash equal to such fraction of the then-current market price of a share of
Common Stock (calculated in accordance with Section 3.1(f) hereof). The Warrant
holders, by their acceptance of the Warrant Certificates, expressly waive their
right to receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
SECTION 2.5. Covenant to Reserve Shares for Issuance on
Exercise. The Company covenants that it will at all times reserve and keep
available out of its authorized but unissued Common Stock, solely for the
purpose of issue upon exercise of Warrants, the full number of shares of Common
Stock, if any, then issuable if all outstanding Warrants then exercisable were
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to be exercised. The Company covenants that all shares of Common Stock issued
upon exercise of the Warrants shall be duly and validly issued and fully paid
and nonassessable.
The Company hereby authorizes and directs its current and
future transfer agents for the Common Stock and for any other shares of the
Company's capital stock issuable upon the exercise of any of the Warrants at all
times to reserve such number of authorized shares as shall be requisite for such
purpose. The Company will supply such transfer agents with duly executed stock
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in this Article II.
SECTION 2.6. Compliance with Governmental Requirements. The
Company covenants that if any shares of Common Stock required to be reserved for
purposes of exercise of Warrants require, under any federal or state law or rule
or regulation of any national securities exchange, registration with or approval
of any governmental authority, or listing on any national securities exchange,
before such shares may be issued upon exercise, the Company will in good faith
and as expeditiously as possible endeavor to cause such shares to be duly
registered, approved or listed on the relevant national securities exchange, as
the case may be; provided, however, that in no event shall such shares of Common
Stock be issued, and the Company is hereby authorized to suspend the exercise of
all Warrants, for the period during which such registration, approval or listing
is required but not in effect (it being understood that the Expiration Date then
in effect shall be extended by one day for each day of any such suspension that
occurs during the year prior to such Expiration Date).
SECTION 2.7. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement, in the event that, at any
time after the date hereof, there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company, then the Company shall
give notice by first-class mail to each holder of an outstanding Warrant at such
holder's address as it appears on the Warrant Register at the earliest
practicable time (and, in any event, not less than twenty days before any date
set for definitive action), of the date on which such dissolution, liquidation
or winding up shall take place, as the case may be. Such notice shall also
specify the date as of which the holders of the shares of record of Common Stock
or other securities, if any, underlying the Warrants shall be entitled to
exchange their shares for securities, money or other property deliverable upon
such dissolution, liquidation or winding up, as the case may be, on which date
each holder of outstanding Warrants shall receive cash or other property (taking
into account the Warrant Price then in effect) which he would have been entitled
to receive had the Warrants been exercisable and exercised immediately prior to
such dissolution, liquidation or winding up, and the right to exercise the
Warrants shall thereupon terminate.
ARTICLE III
ADJUSTMENT OF WARRANT PRICE AND SHARES
OF COMMON STOCK PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its Common Stock, (ii) subdivide
its outstanding Common Stock into a greater number of shares or (iii) combine
the outstanding Common Stock into a smaller number of shares, the Warrant Price
shall be adjusted by multiplying the Warrant Price then in effect by a fraction,
(A) the numerator of which is the number of shares of Common Stock that could be
purchased upon exercise of a Warrant immediately prior to such adjustment, and
(B) the denominator of which is the number of shares of Common Stock that the
holder of a Warrant would have owned or have been entitled to receive after the
happening of any of the events described above had such Warrant been exercised
immediately prior to the record date, in the case of a dividend, or the
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effective date, in the case of a subdivision or combination. An adjustment made
pursuant to this subparagraph (a) shall become effective immediately after the
record date, in the case of a dividend, except as provided in subparagraph (i)
below, and shall become effective immediately after the effective date, in the
case of a subdivision or combination. No adjustment in the Warrant Price shall
be made in the case of a dividend or distribution if, at the same time as the
Company shall issue shares of Common Stock as a dividend or distribution on the
outstanding Common Stock which would otherwise call for an adjustment in the
Warrant Price, the Company shall issue shares of Common Stock as a dividend or
distribution on the outstanding Warrants equivalent to the number of shares
distributable on the shares of Common Stock.
(b) In case the Company shall issue rights, options or
warrants to all holders of shares of Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe for
or purchase shares of Common Stock at a price per share less than the current
market price per share of Common Stock (as defined for purposes of this
subparagraph (b) in subparagraph (f) below), at the record date for the
determination of stockholders entitled to receive such rights, options or
warrants, the Warrant Price in effect after such record date shall be determined
by multiplying such Warrant Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the record date for issuance of such rights, options
or warrants plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered would
purchase at such current market price, and the denominator of which shall be the
number of shares of Common Stock outstanding on the record date for issuance of
such rights, options or warrants plus the number of additional shares of Common
Stock receivable upon exercise of such rights, options or warrants. Such
adjustment shall be made successively whenever any such rights, options or
warrants are issued, and shall become effective immediately, except as provided
in subparagraph (i) below, after such record date. In determining whether any
rights, options or warrants entitled the holders of the Warrants to subscribe
for or purchase shares of Common Stock at less than such current market price,
and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for
such rights, options or warrants plus the exercise price thereof (the value of
such consideration or exercise price, as the case may be, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive).
(c) In case the Company shall distribute to all holders of
Common Stock any shares of capital stock of the Company (other than Common
Stock), or evidences of its indebtedness, or rights, options or warrants to
subscribe for or purchase any shares of capital stock of the Company (other than
Common Stock, and excluding those rights, options or warrants referred to in
subparagraph (b) above), or other assets (other than cash dividends) (any of the
foregoing being hereinafter in this subparagraph (c) called the "Property"),
then, in each such case, unless the Company elects to reserve such Property for
distribution to the holders of the Warrants upon the exercise of the Warrants so
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8
that any such holder exercising Warrants will receive upon such exercise, in
addition to the shares of the Common Stock to which such holder is entitled, the
amount and kind of such Property which such holder would have received if such
holder had, immediately prior to the record date for the distribution of the
Property, exercised his Warrants for shares of Common Stock, the Warrant Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Warrant Price in effect immediately prior to the date of such
distribution by a fraction, the numerator of which shall be the current market
price per share (as defined for purposes of this subparagraph (c) in
subparagraph (f) below) of the Common Stock on the record date mentioned above
less the then fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the Property
so distributed allocable to one share of Common Stock, and the denominator of
which shall be the current market price per share (determined as provided in
subparagraph (f) below) of the Common Stock; provided, however, that in the
event the then fair market value (as so determined) of the portion of the
Property so distributed applicable to one share of Common Stock is equal to or
greater than the current market price per share (as defined in subparagraph (f)
below) of the Common Stock on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of
Warrants shall have the right to receive the amount and kind of Property such
holder would have received had he exercised each such Warrant immediately prior
to the record date for the distribution of the Property. Such adjustment shall
become effective immediately, except as provided in subparagraph (i) below,
after the record date for the determination of shareholders entitled to receive
such distribution.
(d) If, pursuant to subparagraph (b) or (c) above, the number
of shares of Common Stock into which a Warrant is convertible shall have been
adjusted because the Company has declared a dividend, or made a distribution, on
the outstanding shares of Common Stock in the form of any right, option or
warrant to purchase securities of the Company, or the Company has issued any
such right, option or warrant, then, upon the expiration of any such unexercised
right, unexercised option or unexercised warrant, the Warrant Price shall
forthwith be adjusted to equal the Warrant Price that would have applied had
such right, option or warrant never been declared, distributed or issued.
(e) In case the Company pays any cash dividends in respect of
the Common Stock, or repurchases any shares of Common Stock for a per share
consideration that exceeds the then-current market price per share (the amount
of such excess being referred to herein as the "Repurchase Premium"), which in
either case shall constitute an Excess Distribution (as defined below), then the
Warrant Price shall be adjusted by multiplying the Warrant Price then in effect
by a fraction, (i) the numerator of which shall equal (A) the current market
price per share (as defined for purposes of this subparagraph (e) in
subparagraph (f) below) of the Common Stock on the record date for such dividend
or the effective date of such repurchase minus (B) the quotient of dividing an
amount equal to the Excess Distribution by the number of shares of Common Stock
outstanding on such record date or immediately after giving effect to such
repurchase, and (ii) the denominator of which shall equal the current market
price per share of the Common Stock on such record or effective date. An
adjustment made pursuant to this subparagraph (e) shall become effective
immediately upon the record date, in the case of a dividend, except as provided
<PAGE>
9
in subparagraph (i) below, and shall become effective immediately upon the
effective date, in the case of a stock repurchase. For purposes of this
subsection (e), "Excess Distribution" shall mean the amount, if any, by which a
cash dividend in respect of the Common Stock or a Repurchase Premium paid in
connection with the repurchase of shares of Common Stock, plus an amount equal
to all cash dividends and Repurchase Premiums paid by the Company after January
10, 1998, exceeds the sum of (i) $35.0 million, plus (ii) 50% of the Company's
consolidation net income, determined in accordance with generally accepted
accounting principles, after January 10, 1998.
(f) For the purposes of any computation under this Section,
the current market price per share of Common Stock on any date shall be deemed
to be the average of the reported last sales prices for the ten consecutive
Trading Days before the date in question. The reported last sales price for each
day shall be the reported last sales price, regular way, or, in case no sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in either case as reported on the New York Stock Exchange
Composite Tape or, if such security is not listed or admitted to trading on the
New York Stock Exchange at such time, on the principal national securities
exchange on which such security is listed or admitted to trading or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, on the National Market System of Nasdaq or, if such security is not
quoted on such National Market System, the average of the closing bid and asked
prices on such day in the over-the-counter market as reported by Nasdaq or, if
bid and asked prices for the security on each such day shall not have been
reported through Nasdaq, the average of the bid and asked prices for such date
as furnished by any New York Stock Exchange member firm regularly making a
market in such security selected for such purpose by the Board of Directors of
the Company or a committee thereof or, if no such quotations are available, the
fair market value of such security as determined by a New York Stock Exchange
member firm regularly making a market in the Common Stock selected for such
purpose by the Board of Directors of the Company or a committee thereof. As used
herein, the term "Trading Day" with respect to Common Stock means (x) if the
Common Stock is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock Exchange
or such other national securities exchange is open for business, (y) if the
Common Stock is quoted on the National Market System of Nasdaq, a day on which
trades may be made on such National Market System or (z) otherwise, any day
other than a Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
(g) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such Warrant Price; provided, however, that any adjustments which by reason of
this paragraph (g) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article III shall be made to the nearest cent or to the nearest .01 of a share,
as the case may be, with one-half cent and .005 of a share, respectively, being
<PAGE>
10
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (g), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights, options or warrants to purchase stock or
securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
(h) Whenever the Warrant Price is adjusted as herein
provided, the Company shall file with the Warrant Agent a certificate, signed by
the Chairman of the Board, any Vice Chairman, the President, any Executive Vice
President, any Senior Vice President, any Managing Director or any Vice
President of the Company, setting forth the Warrant Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the Company to file such
officer's certificate shall not invalidate any corporate action by the Company.
(i) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
holder of any Warrant exercised after such record date and before the occurrence
of such event the additional shares of Common Stock issuable upon such exercise
by reason of the adjustment required by such event over and above the Common
Stock issuable upon such exercises before giving effect to such adjustment, and
(ii) paying to such holder any amount of cash in lieu of any fractional share.
(j) Whenever the Warrant Price is adjusted as provided in
Article III, the Company shall cause to be mailed to each holder of Warrants at
his then registered address by first-class mail, postage prepaid, a notice of
such adjustment of the Warrant Price setting forth such adjusted Exercise Price
and the effective date of such adjusted Exercise Price; provided, however, that
the failure of the Company to give such notice shall not invalidate any
corporate action by the Company.
(k) The Company represents and warrants to each Warrant
holder that no event has occurred after August 18, 1997, and prior to the date
hereof that would require an adjustment of the Warrant Price pursuant to this
Section 3.1 had this Section been in effect during such period.
SECTION 3.2. Adjustment of Shares of Common Stock Purchasable
Upon Exercise of Warrants. Upon each adjustment of the Warrant Price pursuant to
Section 3.1 hereof, the number of shares of Common Stock that may be purchased
upon exercise of a Warrant shall be determined by multiplying the number of
shares of Common Stock that would otherwise (but for the provisions of this
Section 3.2) be issuable upon such exercise by a fraction, the numerator of
which is the Warrant Price immediately prior to such adjustment, and the
<PAGE>
11
denominator of which is the Warrant Price in effect immediately after such
adjustment. The Warrant Price per share of Common Stock shall be adjusted and
readjusted from time to time as provided in this Article III and, as so adjusted
or readjusted, shall remain in effect until a further adjustment or readjustment
thereof is required by this Article III.
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state the
same Warrant Price and the same number of shares of Common Stock as are stated
in the Warrant Certificates initially issued pursuant to this Agreement. The
Company, however, may at any time in its sole discretion (which shall be
conclusive) make any change in the form of Warrant Certificate that it may deem
appropriate and that does not affect the substance thereof, and any Warrant
Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Common Stockholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Common Stock, including, without limitation, the right to vote at, or to receive
notice of, any meeting of shareholders of the Company or to consent to any
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the shareholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
<PAGE>
12
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any shares
of Common Stock or the holder of any other Warrant Certificate, may, in his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, his right to exercise the Warrants evidenced by his Warrant
Certificate in the manner provided in his Warrant Certificate and in this
Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. In case any of the following shall occur while any Warrants
are outstanding: (a) 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 a result of a subdivision or combination of the Common Stock); or
(b) any consolidation, merger or combination to which the Company is party,
other than a consolidation, merger or combination in which the Company is a
continuing corporation and which does not result in any reclassification of or
change in the outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or a subdivision or combination of the
Common Stock); or (c) any sale, conveyance or lease of the properties 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 or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the holders of the Warrants
then outstanding shall have the right at any time thereafter, upon exercise of
<PAGE>
13
such Warrants, to convert such Warrants into the kind and amount of shares of
stock and other securities and property or assets receivable upon such
reclassification, change, consolidation, merger, combination, sale, conveyance
or lease 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, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company, as the predecessor corporation, may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been signed by the Company, and may
execute and deliver shares of Common Stock in its own name, in fulfillment of
its obligations to deliver Common Stock upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In the event that holders of
Common Stock are afforded an election with respect to the kind and amount of
shares of stock and other securities and property or assets receivable by them
upon any reclassification, change, consolidation, merger, combination, sale,
conveyance or lease, then for purposes of this Section the kind and amount of
shares of stock and other securities and property or assets receivable upon such
event shall be deemed to be the kind and amount so receivable per share by the
holders of a plurality of shares of Common Stock that do not exercise any
election with respect thereto. In case of any such reclassification, change,
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate. If, in the case of any such
consolidation, merger, combination, sale or conveyance, the stock or other
securities and property receivable thereupon by a holder of Common Stock
includes shares of stock, securities or other property or assets (including
cash) of an entity other than the successor or acquiring entity, as the case may
be, in such consolidation, merger, combination, sale or conveyance, then the
Company shall enter into an agreement with such other entity for the benefit of
the holders of the Warrants that shall contain such provisions to protect the
interests of such holders as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
consolidation, merger, conveyance or transfer complies with the provisions of
this Section 4.4.
Not less than 20 nor more than 90 days prior to the record
date or effective date, as the case may be, of any action which requires or is
reasonably expected to require an adjustment or readjustment pursuant to this
Section 4.4, the Company shall give notice to each Warrant holder of such event,
describing such event in reasonable detail and specifying the record date or
effective date, as the case may be, and, if determinable, the required
adjustment and the computation thereof. If the required adjustment is not
determinable at the time of such notice, the Company shall give notice to each
Warrant holder of such adjustment and computation promptly after such adjustment
becomes determinable.
ARTICLE V
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates.
Upon surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office, books
in which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
<PAGE>
14
and the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange or registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of transfer,
the Company, the Warrant Agent and all other persons may treat the holder of a
Warrant Certificate as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints First
Union National Bank as Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions herein
set forth; and First Union National Bank hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon
<PAGE>
15
it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as Warrant Agent hereunder, as well as the
costs and expenses of defending against any clam of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Common Stock or other securities of the
Company as freely as if it were not the Warrant Agent hereunder. Nothing in the
Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under any indenture of the Company.
<PAGE>
16
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereupon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or in
the Warrant Certificates (except as to the Warrant Agent's counter-signature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall be under no obligation to take any action
hereunder that may involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.2 hereof, to make any demand upon
the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided,
however, that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
<PAGE>
17
removal and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 6.2(a) shall continue to the
extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which substantially all the assets and business of the Warrant Agent shall be
conveyed, provided that it shall be qualified as aforesaid, shall be the
successor 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.
<PAGE>
18
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that any such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 7.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 7.3. Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to First
Union National Bank, 1525 West W.T. Harris Boulevard, 3C3, Charlotte, North
Carolina, 28288-1153, Attention: Corporate Trust Department; and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Richfood Holdings, Inc., 4860 Cox Road, Glen
Allen, Virginia, 23060, Attention: Secretary (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 7.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia.
SECTION 7.5. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws which may be or become required in connection with the issuance,
sale, transfer and delivery of the shares of Common Stock issued upon exercise
of the Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 7.6. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
<PAGE>
19
SECTION 7.7. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 7.8. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 7.9. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, the Company and the Warrant Agent have
caused this Agreement to be signed by their respective duly authorized officers
as of the day and year first above written.
RICHFOOD HOLDINGS, INC.
By:___________________________
Title:
FIRST UNION NATIONAL BANK
By:___________________________
Title:
<PAGE>
EXHIBIT A
[Face of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND WERE ISSUED PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY 11 U.S.C. ss.1145, UNDER AN ORDER CONFIRMING THE
PLAN OF REORGANIZATION OF FARM FRESH, INC. DATED , 1998. THE HOLDER OF THIS
CERTIFICATE IS REFERRED TO 11 U.S.C. ss.1145 FOR GUIDANCE AS TO THE SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE.
WARRANTS TO PURCHASE COMMON STOCK
VOID AFTER 5 P.M. NEW YORK CITY TIME ON MARCH __, 2003, UNLESS EXTENDED
VALID ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
[LOGO]
RICHFOOD HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA
No.___________ Warrants to Purchase
____________ Shares
of Common Stock
CUSIP____________
This certifies that _____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner, subject to the registered owner qualifying as a "holder"
of this Warrant Certificate, as hereinafter defined, to purchase, at any time
after 5 P.M., New York City time, on March __, 1998, and at or before 5 P.M.,
New York City time, on March __, 2003 (unless such expiration date is extended
pursuant to the Warrant Agreement), one share of Common Stock, without par value
(the "Common Stock"), of Richfood Holdings, Inc. (the "Company"), at an exercise
price of $25.00 per share (the "Warrant Price"). Except as provided in the
Warrant Agreement, no adjustment shall be made for any dividends on any shares
of Common Stock issuable upon exercise of any Warrant. The number of shares of
Common Stock issuable upon exercise of a Warrant, and the Warrant Price, are
subject to adjustment from time to time as provided in the Warrant Agreement.
A-1
<PAGE>
The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof, and by paying in
full in lawful money of the United States of America in cash or by certified
check or official bank check or by bank wire transfer, in each case, in
immediately available funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of First union National Bank, or its successor as warrant
agent (the "Warrant Agent"), currently at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement.
The term "holder" as used herein shall mean the person in
whose name at the time this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
5.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase shares of Common Stock in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of March __, 1998 (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent and at the principal executive offices of the
Company.
Any transfer of this Warrant Certificate may be registered
when this Warrant Certificate is surrendered at the corporate trust office of
the Warrant Agent by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
Except as provided in the immediately preceding paragraph,
after countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of Common Stock, including, without limitation,
the right vote or to receive dividends with respect thereto.
A-2
<PAGE>
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated:
RICHFOOD HOLDINGS, INC.
By:_________________________
Attest:
- ---------------------------------
Countersigned:
FIRST UNION NATIONAL BANK,
As Warrant Agent
By:______________________________
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
INSTRUCTIONS FOR EXERCISE OF WARRANTS
To exercise the Warrants evidenced hereby, the holder must pay
the Warrant Price in full for warrants exercised, at the holder's option, in
lawful money of the United States of America in cash or by certified check or
official bank check or by bank wire transfer, in each case in immediately
available funds. The Warrant Price shall be paid to First Union National Bank,
which payment must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the payment.
SUBSCRIPTION FORM
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise
___________ Warrants, evidenced by this Warrant Certificate, to purchase
__________ shares of the Common Stock (the "Common Stock") of Richfood Holdings,
Inc. and represents that he has tendered payment of the Warrant Price for such
Common stock to First Union National Bank, in the amount of _______________ in
accordance with the terms hereof. The undersigned requests that such Common
Stock be registered in such names and delivered all as specified in accordance
with the instructions set forth below.
A-4
<PAGE>
<TABLE>
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
<S> <C>
Dated:______________________________ Name____________________________
___________________________________ Address _______________________
(Insert Social Security or other _______________________
Identifying Number of Holder) _______________________
_______________________
Signature Guarantee Signature_______________________
(Signature must conform in all respects to
___________________________________ name of holder as specified on face of this
Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member
broker of the New York, Midwest or Pacific
Stock Exchanges)
</TABLE>
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at: First Union National Bank, Corporate Trust Department
1525 West W. T. Harris Boulevard, 3C3
Charlotte, North Carolina 28288-1153
By mail at: First Union National Bank, Corporate Trust Department
1525 West W. T. Harris Boulevard, 3C3
Charlotte, North Carolina 28288-1153
A-5
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED_________________________________ hereby sells,
assigns and transfers unto
- ------------------------------
(Please print name)
- ------------------------------
(Address)
- ------------------------------
(City, including zip code)
- ------------------------------
(Please insert social security or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
-----------------------------
(Signature)
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Midwest or Pacific Stock
Exchanges
Signature Guarantee
- -----------------------------------
A-6
