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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Today's Man, Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 23-1743137
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
835 Lancer Drive, Moorestown, NJ 08057
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(Address of principal executive offices) (Zip Code)
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Securities to be registered to Section 12(b) of the Act:
Title of each class to be so registered Name of each exchange on which
each class is to be registered
None Not Applicable
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d),check the following box. [x]
Securities Act registration statement file number to which this form relates:
(if applicable) Not applicable
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
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(Title of class)
Common Stock Purchase Warrants
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
The descriptions of the Registrant's, Common Stock, no par value per
share ("Common Stock"), and the description of the Registrant's Common Stock
Purchase Warrants ("Warrants") are set forth below. The following descriptions
do not purport to be exhaustive and are qualified in their entirety by
reference to the Actual Amended and Restated Articles of Incorporation
("Amended Articles"), Amended and Restated Bylaws ("Amended Bylaws") and
Warrant Agreement dated as of December 31, 1997 ("Warrant Agreement"), copies
of which are filed herewith as Exhibit 2.1, Exhibit 2.2 and Exhibit 2.4,
respectively.
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A. Common Stock.
The principal terms of the Common Stock are as follows:
(a) Authorization: 100,000,000 shares
(b) Par Value: None
(c) Voting: One vote per share with no cumulative voting rights
(d) Dividends: Subject to preferences that may be applicable to any
then outstanding Preferred Stock, the holders of Common Stock
are entitled, among other things: (i) to share ratably in
dividends if, when and as declared by the Board of Directors
out of funds legally available therefor; and (ii) in the event
of liquidation, dissolution or winding-up of the Company, to
share ratably in the distribution of assets legally available
therefore, after payment of debts and expenses.
(e) Preemptive Rights: The holders of Common Stock will not have any preemptive rights
to subscribe for additional shares of capital stock of the
Company.
(f) Status: All shares of Common Stock issued in exchange for shares
of previously issued Common Stock pursuant to the Registrant's
Second Amended Joint Plan of Reorganization, as modified December
12, 1997 (the "Plan"), will be fully paid and nonassessable. All
shares of Common Stock issuable upon the exercise of Rights pursuant
to the Plan and Warrants, when issued upon the proper exercise of
the Rights and Warrants and the payment of the purchase price or
exercise price therefor, will be fully paid and nonassessable. The
rights, preferences and privileges of holders of Common Stock
are subject to the terms of any series of Preferred Stock (as
defined below) which the Company may issue in the future.
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B. Warrants.
The principal terms of the Warrants are as follows:
(a) Authorization and Issuance: 5,430,503 Warrants (which amount may be increased by
an amount, not to exceed 6,000 Warrants, to
accommodate the rounding up of fractional Warrants
under the Plan), each of which shall be exercisable
for one share of Common Stock, subject to adjustment,
at any time prior to expiration.
(b) Exercise Price: $2.70 per share, subject to adjustment.
(c) Expiration: 5:00 p.m., local time, on the second anniversary of the
Issuance Date.
(d) Redemption: The Warrants are not redeemable.
(e) Voting Rights: None.
(f) Adjustment: The number of shares of Common Stock issuable upon exercise
of the Warrants and the exercise price of the Warrants are
subject to adjustment in the event of (i) a change in the
Common Stock as a result of a stock dividend or stock split
or a subdivision, combination or reclassification of shares;
or (ii) certain mergers, consolidation or business combinations
involving the Registrant, all as more particularly provided in
the Warrant Agreement, a copy of which is filed herewith as
Exhibit 2.4.
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C. Additional Information.
In addition to the Common Stock, the Company will be
authorized to issue 5,000,000 shares of Preferred Stock, no par value,
issuable in series, the relative rights, limitations and preferences of which
may be designated by the Board of Directors ("Preferred Stock").
(1) Preferred Stock.
The Preferred Stock may be issued from time to time by the
Board of Directors as shares of one or more classes or series, in each case
without any further action or vote by the shareholders. Subject to the
provisions of the Company's Amended Articles and limitations prescribed by
law, the Board of Directors is expressly vested with authority to fix by
resolution the designations, preferences, qualifications, limitations,
restrictions and special or relative rights, if any, of Preferred Stock, and
each series thereof, including without limitation, the following: (i) the
voting rights and powers, if any, of Preferred Stock, and each series thereof;
(ii) the rates and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock, and each series thereof, will be paid,
and any dividend preferences or rights of cumulation; (iii) the rights, if
any, of holders of Preferred Stock, and each series thereof, to convert the
same into, or exchange the same for, shares of other classes (or series of
classes) of capital stock of the Company and the terms and conditions for such
conversion or exchange, including provisions for adjustment of conversion or
exchange prices or rates in such events as the Board of Directors shall
determine; (iv) the redemption rights, if any, of the Company and the holders
of Preferred Stock, and each series thereof, and the times at which, and the
terms and conditions on which, Preferred Stock, and each series thereof, may
be redeemed; and (v) the rights and preferences, if any, of the holders of
Preferred Stock, and each series thereof, upon the voluntary liquidation,
dissolution or winding up of the Corporation.
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One of the effects of undesignated Preferred Stock may be to
enable the Board of Directors to render more difficult or to discourage an
attempt to obtain control of the Company by means of a tender offer, proxy
contest, merger or otherwise, and thereby to protect the continuity of the
Company's management. The issuance of shares of the Preferred Stock pursuant
to the Board of Directors' authority described above may adversely affect the
rights of the holders of Common Stock. For example, Preferred Stock issued by
the Company may rank prior to the Common Stock as to dividend rights,
liquidation preference or both, may have full or limited voting rights and may
be convertible into shares of Common Stock. Accordingly, the issuance of
shares of Preferred Stock may discourage bids for the Common Stock or may
otherwise adversely affect the market price of the Common Stock.
(2) Anti-Takeover Provisions.
The Amended Articles and the Amended Bylaws contain several
provisions intended to limit the possibility of, or make more difficult, a
takeover of the Company. In addition to providing for a classified Board of
Directors, which pursuant to the Amended Articles is being increased from
these classes to four classes, and the issuance of Preferred Stock having
terms established by the Board of Directors without shareholder approval, the
Amended Articles provide that: (i) at least 65% of the votes cast by
shareholders is required to approve amendments to the Amended Articles and
Amended Bylaws, unless at least a majority of the incumbent directors on the
Board of Directors has voted in favor of the amendment, in which case only a
majority of the votes cast by shareholders is required to approve the
amendment; (ii) directors can be removed by the shareholders only for cause
and only by a vote of at least 65% of the votes cast by shareholders; and
(iii) at least 60% of the votes entitled to be cast by all shareholders is
required for shareholders to call special meetings of the shareholders. In
addition, the Amended Articles provide that actions by shareholders without a
meeting must receive the unanimous written consent of all shareholders. The
Articles also permit the Board of Directors to oppose, in its sole discretion,
a tender offer or other offer for the Company's securities and to take into
consideration all pertinent issues. Should the Board of Directors determine to
reject such an offer, it may take any lawful action to accomplish its purpose,
including, among other things, advising shareholders not to accept the offer
and commencing litigation against the offeror. The Company's Amended Bylaws
establish procedures for the nomination of directors by shareholders and the
proposal by shareholders of matters to be considered at meetings of the
shareholders, including the submission of certain information within the times
prescribed in the Amended Bylaws.
In addition, under the Pennsylvania Business Corporation Law
of 1988, as amended (the "BCL"), subject to certain exceptions, a business
combination between a Pennsylvania corporation and a person owning 20% or more
of such corporation's voting stock (an "interested person") may be
accomplished only if: (i) the business combination is approved by the
corporation's directors prior to the date on which such person acquired 20% or
more of such stock or if the board approved such person's acquisition of 20%
or more of such stock prior to such acquisition; (ii) the interested person
owns shares entitled to cast at least 80% of the votes all shareholders would
be entitled to cast in the election of directors, the business combination is
approved by the vote of shareholders entitled to cast a majority of votes that
all stockholders would be entitled to cast in an election of directors
(excluding shares held by the interested person), which vote may occur no
earlier than three months after the interested person acquired its 80%
ownership, and the consideration received by shareholders in the business
combination satisfies certain minimum conditions; (iii) the business
combination is approved by the affirmative vote of all outstanding shares of
Common Stock; or (iv) the business combination is approved by the vote of
shareholders entitled to cast a majority of the votes that all shareholders
would be entitled to cast in the election of directors (excluding shares held
by the interested person), which vote may occur no earlier than five years
after the interested person became an interested person. A corporation may
exempt itself from this provision by an amendment to its articles of
incorporation that requires shareholder approval. The Amended Articles do not
provide an exemption from this provision. Pennsylvania has also adopted other
anti-takeover legislation from which the Company has elected to exempt itself
in the Amended Articles.
The BCL also provides that the directors of a corporation,
in making decisions concerning takeovers or any other matters, may consider,
to the extent that they deem appropriate, among other things: (i) the effects
of any proposed transaction upon any or all groups affected by such action,
including, among others, shareholders, employees, suppliers, customers and
creditors; (ii) the short-term and long-term interests of the corporation; and
(iii) the resources, intent and conduct of the person seeking control.
The existence of the foregoing provisions of the Amended
Articles, Amended Bylaws and BCL may discourage other persons or companies
from making a tender offer for, or seeking to acquire, substantial amounts of
the Company's Common Stock.
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Item 2. Exhibits.
2.1 Amended and Restated Articles of Incorporation of the Registrant.
2.2 Amended and Restated Bylaws of the Registrant.
2.3 Debtor's Second Amended Joint Plan of Reorganization, as
modified on December 12, 1997, which was filed in the United
States Bankruptcy Court for the District of Delaware
(incorporated by reference to the Registrant's Current
Report on Form 8-K, filed with the Securities and Exchange
Commission on December 29, 1997).
2.4 Warrant Agreement, dated as of December 31, 1997, between
Today's Man, Inc. and Stocktrans, Inc. as warrant agent.
2.5 Form of Common Stock Purchase Warrant (incorporated by
reference to the form of Common Stock Purchase Warrant
attached as Exhibit A to the Warrant Agreement filed as
Exhibit 2.4 hereof).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Today's Man, Inc.
Date: December 23, 1997 By: /s/ Frank E. Johnson
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Frank E. Johnson,
Executive Vice President
and Chief Financial Officer
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EXHIBIT 2.1
TODAY'S MAN, INC.
Amended and Restated
Articles of Incorporation
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The Articles of Incorporation of Today's Man, Inc. are hereby amended
and restated in their entirety to read as follows:
1. Name. The name of the corporation is Today's Man, Inc. (the
"Corporation").
2. Registered Office. The location and address of the registered
office of the Corporation in this Commonwealth is c/o CT Corporation System,
1635 Market Street, Suite 1120, Philadelphia, Pennsylvania 19103.
3. Purposes. The Corporation is incorporated under the Pennsylvania
Business Corporation Law of 1988, as it may be amended from time to time
(which, as amended from time to time, is hereafter called the "Business
Corporation Law"), for the following purposes:
To have unlimited power to engage in or do any lawful act
concerning any or all lawful businesses for which
corporations may be incorporated under the Pennsylvania
Business Corporation Law of 1988, as amended from time to
time, including without limitation, to own and operate
retail stores.
4. Term. The term for which the Corporation is to exist is perpetual.
5. Authorized Capital Stock. The Corporation shall have the authority
to issue an aggregate of 105,000,000 shares of capital stock which shall be
divided into 100,000,000 shares of Common Stock, no par value, as more fully
described in Section 5(a) below, and 5,000,000 shares of Preferred Stock, no
par value, as more fully described in Section 5(b) below.
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(a) Common Stock. Each holder of record of Common Stock
shall have the right to one vote for each share of Common Stock registered in
their name on the books of the Corporation.
(b) Preferred Stock. The shares of Preferred Stock may be
divided and issued from time to time in one or more series as may be
determined by the Board of Directors of the Corporation, each such series to
be distinctly designated and to consist of the number of shares determined by
the Board of Directors. The designations, preferences, qualifications,
limitations, restrictions and special or relative rights, if any, of any
series of Preferred Stock may differ from those of any and all other series at
any time outstanding. The Board of Directors of the Corporation is hereby
expressly vested with authority to fix by resolution the designations,
preferences, qualifications, limitations, restrictions and special or relative
rights, if any, of Preferred Stock, and each series thereof, which may be
designated by the Board of Directors, including, but without limiting the
generality of the foregoing, the following:
(i) The voting rights and powers, if any, of
Preferred Stock, and each series thereof;
(ii) The rates and times at which, and the terms
and conditions on which, dividends, if any, on Preferred Stock, and
each series thereof, will be paid, and any dividend preferences or
rights of cumulation;
(iii) The rights, if any, of holders of Preferred
Stock, and each series thereof, to convert the same into, or exchange
the same for, shares of other classes (or series of classes) of
capital stock of the Corporation and the terms and conditions for
such conversion or exchange, including provisions for adjustment of
conversion or exchange prices or rates in such events as the Board of
Directors shall determine;
(iv) The redemption rights, if any, of the
Corporation and the holders of Preferred Stock, and each series
thereof, and the times at which, and the terms and conditions on
which, Preferred Stock, and each series thereof, may be redeemed; and
(v) The rights and preferences, if any, of the
holders of Preferred Stock, and each series thereof, upon the
voluntary liquidation, dissolution or winding up of the Corporation.
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(c) Increase in Authorized Preferred Stock. Except as
otherwise provided by law or in a resolution or resolutions establishing any
particular series of Preferred Stock, the aggregate number of authorized
shares of Preferred Stock may be increased by an amendment to these Amended
and Restated Articles of Incorporation approved solely by the holders of
Common Stock and of any series of Preferred Stock which is entitled pursuant
to its voting rights designated by the Board of Directors to vote thereon, if
at all, voting together as a class.
(d) Prohibition on Issuance of Nonvoting Capital Stock. The
Corporation will not issue nonvoting capital stock to the extent prohibited by
Section 1123(a)(6) of Title 11 of the United States Code (the "Bankruptcy
Code"); provided, however, that this paragraph (d): (a) will have no further
force and effect beyond that required under Section 1123 of the Bankruptcy
Code, (b) will have such force and effect, if any, only for so long as such
Section is in effect and applicable to the Corporation, and (c) in all events
may be deemed void or eliminated in accordance with applicable law as from
time to time in effect.
6. Cumulative Voting. The shareholders of the Corporation shall not
be entitled to cumulate their votes in the election of directors.
7. Special Meetings of Shareholders. Special meetings of the
shareholders of the Corporation may be called, in the manner provided in the
Business Corporation Law, by shareholders entitled to cast at least sixty
percent (60%) of the votes that all shareholders are entitled to cast at the
particular meeting.
8. Actions By Consent of Shareholders. No action may be authorized by
the shareholders of the Corporation without a meeting by less than unanimous
written consent.
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9. Applicability of Certain Provisions of the Pennsylvania Business
Corporation Law. The provisions contained in Subchapters E, G, H, I and J of
Chapter 25 of the Pennsylvania Business Corporation Law, as it may be amended,
shall not be applicable to the Corporation. The provisions of Section 2538 of
the Pennsylvania Business Corporation Law, as it may be amended, shall not be
applicable to the Corporation, unless at least a majority of the incumbent
directors (as defined herein) on the Board of Directors shall determine that
Section 2538, subject to such exceptions, limitations and modifications as
such incumbent directors may provide, shall be applicable. The term "incumbent
director", as used herein, shall mean any director of the Corporation on the
date hereof and any other director whose election or appointment by the Board
of Directors of the Corporation, or whose nomination for election by the
shareholders of the Corporation, was approved by a vote of at least a majority
of the directors then in office who either were directors on the date hereof
or whose election or appointment or nomination for election was previously so
approved.
10. Tender Offers and Other Offers.
(a) The Board of Directors may, if it deems it advisable,
oppose a tender or other offer for the Corporation's securities, whether the
offer is in cash or in securities of a corporation or otherwise. In
considering whether to oppose an offer, the Board of Directors may, but it is
not legally obligated to, consider any pertinent issues. By way of
illustration, but not of limitation, the Board of Directors may, but shall not
be legally obligated to consider any and all of the following:
(i) Whether the offer price is acceptable based on
the historical and present operating results or financial
conditions of the Corporation;
(ii) Whether a more favorable price could be obtained
for the Corporation's securities in the future;
(iii) The impact which an acquisition of the Corporation
would have on the employees, suppliers and customers of the
Corporation and its subsidiaries and on the communities served by the
Corporation and its subsidiaries;
(iv) The reputation and business practices of the
offeror and its management and affiliates as they would affect the
employees, suppliers and customers of the Corporation and its
subsidiaries and the future value of the Corporation's stock;
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(v) The value of the securities, if any, which the
offeror is offering in exchange for the Corporation's securities,
based on an analysis of the worth of the Corporation as compared to
the corporation or other entity whose securities are being offered;
and
(vi) Any antitrust or other legal and regulatory issues
that are raised by the offer.
(b) If the Board of Directors determines that an offer
should be rejected, it may take any lawful action to accomplish its purpose
including, but not limited to, any and all of the following: (i) advising
shareholders not to accept the offer; (ii) commencing litigation against the
offeror; (iii) filing complaints with all governmental and regulatory
authorities; (iv) acquiring the Corporation's securities and/or the offeror's
securities; (v) selling or acquiring any assets; (vi) selling or otherwise
issuing authorized but unissued securities or treasury stock or granting
options with respect thereto; (vii) selling or otherwise issuing any debt
securities (including debt securities convertible into equity securities) or
options therefor; (viii) acquiring a company to create an antitrust or other
regulatory problem for the offeror; and (ix) obtaining a more favorable offer
from another individual or entity.
11. Removal of Directors.
(a) Removal by Shareholders
The entire Board of Directors, or a class of the Board, or
any individual director may be removed from office only for cause (as defined
herein) and only by the affirmative vote of shareholders entitled to cast at
least sixty-five percent (65%) of the votes cast by shareholders at any annual
or regular election of directors or of such class of directors. The term
"cause", as used herein, shall refer only to one of the following events: (1)
conviction of the director of a felony; (2) declaration by order of court that
the director is of unsound mind; or (3) gross abuse of trust committed in bad
faith.
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(b) Removal by Board of Directors
The Board of Directors may, without shareholder approval, declare
vacant the office of any director for any proper cause (whether or not similar
to those listed in subparagraph (a) above) including, but not limited to,
conflict of interest or other breach of fiduciary duty, or unacceptability of
the director to federal or state securities regulators, the regulators of any
securities exchange or automated quotation system on which securities of the
Corporation are traded, or to federal, state or local regulators of the
business of the Corporation.
12. Amendments to Articles of Incorporation and Bylaws. The
shareholders of the Corporation shall not be entitled to propose an amendment
to the Articles of Incorporation of the Corporation. Any amendment to, or
repeal of, any provision of the Articles of Incorporation of the Corporation
which has not previously received the approval of at least a majority of the
incumbent directors (as defined herein) on the Board of Directors shall
require for adoption the affirmative vote of the holders of at least
sixty-five percent (65%) of the votes cast by shareholders at any duly
convened annual or special meeting of the shareholders, in addition to any
other approval which is required by law, the Articles of Incorporation of the
Corporation, the Bylaws of the Corporation, or otherwise. Any amendment to, or
repeal of, any provision of the Bylaws of the Corporation which has not
previously received the approval of at least a majority of the incumbent
directors (as defined herein) on the Board of Directors shall require for
adoption the affirmative vote of the holders of at least sixty-five percent
(65%) of the votes cast by shareholders at any duly convened annual or special
meeting of the shareholders, in addition to any other approval which is
required by law, the Articles of Incorporation of the Corporation, the Bylaws
of the Corporation, or otherwise. The term "incumbent director", as used
herein, shall mean any director of the Corporation on the date hereof and any
other director whose election or appointment by the Board of Directors of the
Corporation, or whose nomination for election by the shareholders of the
Corporation, was approved by a vote of at least a majority of the directors
then in office who either were directors on the date hereof or whose election
or appointment or nomination for election was previously so approved.
13. Personal Liability of Directors
(a) A director of this Corporation shall not be personally
liable for monetary damages as such for any action taken, or any failure to
take any action, unless:
(i) the director has breached or failed to perform
the duties of his office under Chapter 17, Subchapter B of the Pennsylvania
Business Corporation Law; and
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(ii) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(b) This Article 13 shall not limit a director's liability
for monetary damages to the extent prohibited by Section 1713(b) of the
Business Corporation Law.
14. Number of Directors
The Board of Directors shall consist of not less than four (4) and
not more than (15) fifteen directors. The number of directors to be elected,
subject to the foregoing limits, shall be determined from time to time by the
Board of Directors.
15. Classification of the Board of Directors
Effective upon the Effective Date of the Corporation's Second Amended
Joint Plan of Reorganization (as the same may be amended from time to time
hereafter, the "Plan"), the directors shall be divided into four (4) classes,
as nearly equal in number as possible as shall be determined by the Board,
known as Class I, Class II, Class III and Class IV. The initial directors
belonging to each Class shall be as provided in the Plan. The initial
directors of Class I shall serve until the annual meeting of shareholders to
be held in 1998. At the 1998 annual meeting of the shareholders, the directors
of Class I shall be elected for a term of four (4) years and, after expiration
of such term, shall thereafter be elected every four (4) years for four (4)
year terms. The initial directors of Class II shall serve until the annual
meeting of the shareholders to be held in 1999. At the 1999 annual meeting of
the shareholders, the directors of Class II shall be elected for a term of
four (4) years and, after the expiration of such term, shall thereafter be
elected every four (4) years for four (4) year terms. The initial directors of
Class III shall serve until the annual meeting of shareholders to be held in
2000. At the 2000 annual meeting of the shareholders, the directors of Class
III shall be elected for a term of four (4) years and, after the expiration of
such term, shall thereafter be elected every four (4) years for four (4) year
terms. The initial directors of Class IV shall serve until the annual meeting
of shareholders to be held in 2001. At the 2001 annual meeting of the
shareholders, the directors of Class IV shall be elected for a term of four
(4) years and, after the expiration of such term, shall thereafter be elected
every four (4) years for four (4) year terms. Each director shall serve until
his or her successor shall have been elected and shall qualify, even though
his or her term of office as herein provided has otherwise expired, except in
the event of his or her earlier resignation, removal or disqualification. This
Article 15, or any portion thereof, may be changed by a by-law amendment which
is adopted by all of the then members of the Board of Directors.
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16. Severability
In the event that all, some or any part of any provision
contained in these Articles of Incorporation shall be found by any court of
competent jurisdiction to be illegal, invalid or unenforceable (as against
public policy or otherwise), such provision shall be enforced to the fullest
extent permitted by law and shall be construed as if it had been narrowed only
to the extent necessary so as not to be invalid, illegal or unenforceable; the
validity, legality and enforceability of the remaining provisions of these
Articles of Incorporation shall continue in full force and effect and shall
not be affected or impaired by such illegality, invalidity or unenforceability
of any other provision (or any part or parts thereof) of these Articles of
Incorporation. If and to the extent that any provision contained in these
Articles of Incorporation violates any rule of a securities exchange or
automated quotation system on which securities of the Corporation are traded,
the Board of Directors is authorized, in its sole discretion, to suspend or
terminate such provision for such time or periods of time and subject to such
conditions as the Board of Directors shall determine in its sole discretion.
17. Headings
Article headings and the ordering of paragraphs are for
convenience of reference only and shall not be construed to alter, amend or
otherwise affect the meaning, intent or effect of the provisions of these
Articles of Incorporation.
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EXHIBIT 2.2
TODAY'S MAN, INC.
Amended and Restated Bylaws
These Bylaws are supplemental to the Pennsylvania Business
Corporation Law as the same shall from time to time be in
effect.
ARTICLE I. SHAREHOLDERS.
Section 101. Place of Shareholders' Meetings. All meetings of the
shareholders shall be held at such place or places, inside or outside the
Commonwealth of Pennsylvania, as determined by the Board of Directors from
time to time.
Section 102. Annual Shareholders' Meeting. The annual meeting of the
shareholders for the election of directors and the transaction of such other
business as may properly come before such meeting shall be held at such time
and place as determined by the Board of Directors. Any business which is a
proper subject for shareholder action may be transacted at the annual meeting,
irrespective of whether the notice of said meeting contains any reference
thereto, except as otherwise provided by applicable law.
Section 103. Special Meetings of Shareholders. Special meetings of
the shareholders may be called at any time by the Board of Directors or the
Chairman of the Board or the Chief Executive Officer.
Section 104. Conduct of Shareholders' Meetings. The Chairman of the
Board shall preside at all shareholders' meetings. In the absence of the
Chairman of the Board, the Chief Executive Officer shall preside or, in his or
her absence, any officer designated by the Board of Directors shall preside.
The officer presiding over the shareholders' meeting may establish such rules
and regulations for the conduct of the meeting as he or she may deem to be
reasonably necessary or desirable for the orderly and expeditious conduct of
the meeting. Unless the officer presiding over the shareholders' meeting
otherwise requires, shareholders need not vote by ballot on any questions.
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ARTICLE II. DIRECTORS.
Section 201. Management by Board of Directors. The business and
affairs of the Corporation shall be managed by its Board of Directors. The
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute, regulation, the Amended and
Restated Articles of Incorporation or these Amended and Restated Bylaws
directed or required to be exercised or done by the shareholders.
Section 202. Nomination for Directors and Submission of Proposals.
(a) Nominations for directors to be elected may be made at a
meeting of shareholders only by (i) the Board of Directors (or any committee
thereof), or (ii) a shareholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the procedure set forth
in Section 202(b) of these Bylaws. Business may be conducted at a meeting of
the shareholders of the Corporation only if such business (i) was specified in
the notice of meeting (or any supplement thereto) given by the Board of
Directors, (ii) is otherwise properly brought before the meeting by the Board
of Directors, or (iii) is otherwise properly brought before the meeting by a
shareholder of the Corporation in accordance with the procedure set forth in
Section 202(b) of these Bylaws. Notwithstanding the foregoing, at any time
prior to the election of directors at a meeting of shareholders, the Board of
Directors may designate a substitute nominee to replace any bona fide nominee
who was nominated as set forth above and who, for any reason, becomes
unavailable for election as a director.
(b) Beginning with the annual meeting of the shareholders to
be held in 1993, nominations by shareholders for directors to be elected, or
proposals by shareholders to be considered, at a meeting of shareholders and
which have not been previously approved by the Board of Directors must be
submitted to the Secretary of the Corporation in writing, either by personal
delivery, nationally-recognized express mail or United States mail, postage
prepaid, not later than (i) with respect to an election to be held, or a
proposal to be considered, at an annual meeting of shareholders, the latest
date upon which shareholder proposals must be submitted to the Corporation for
inclusion in the Corporation's proxy statement relating to such meeting
pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended,
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or other applicable rules or regulations under the federal securities laws or,
if no such rules apply, at least ninety (90) days prior to the date one year
from the date of the immediately preceding annual meeting of shareholders, and
(ii) with respect to an election to be held, or a proposal to be considered,
at a special meeting of shareholders, the close of business on the tenth day
following the date on which notice of such meeting is first given to
shareholders. Each such nomination or proposal shall set forth: (i)the name
and address of the shareholder making the nomination or proposal and the
person or persons nominated, or the subject matter of the proposal submitted;
(ii) a representation that the shareholder is a holder of record of capital
stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to vote for the person or persons
nominated, or the proposal submitted; (iii) a description of all arrangements
and understandings between the shareholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination was made, or the proposal was submitted, by the shareholder; (iv)
such other information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee been
nominated by the Board of Directors; and (v) the consent of each nominee to
serve as a director of the Corporation if so elected. All late nominations and
proposals shall be rejected.
Section 203. Number and Classification of Directors. The Board of
Directors shall consist of such number of directors as shall be determined
from time to time by the Board of Directors, subject to the limitations set
forth in the Amended and Restated Articles of Incorporation. As provided in
the Amended and Restated Articles of Incorporation, the directors shall be
divided into four (4) classes, as nearly equal in number as possible as shall
be determined by the Board, known as Class I, Class II, Class III and Class
IV.
Section 204. Vacancies in the Board of Directors. Subject to the
rights of the holders of any series of the Corporation's Preferred Stock then
outstanding, vacancies in the Board of Directors, including vacancies
resulting from an increase in the number of directors, shall be filled by the
affirmative vote of at least a majority of the remaining members of the Board,
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even though less than a quorum, and each person so elected shall be a director
until his successor is elected by the shareholders. Any director elected to
fill a vacancy in the Board of Directors shall become a member of the same
class of directors in which the vacancy existed; but if the vacancy is due to
an increase in the number of directors, a majority of the members of the Board
of Directors shall designate such directorship as belonging to Class I, Class
II, Class III or Class IV so as to maintain the four (4) classes of directors
as nearly equal in number as possible. Each director so elected shall hold
office for the unexpired term of the class to which he has been elected, and
thereafter until his or her successor shall have been duly elected and
qualified, except in the event of his or her earlier resignation, removal or
disqualification.
Section 205. Resignations of Directors. Any director may resign at
any time. Such resignation shall be in writing, but the acceptance thereof
shall not be necessary to make it effective.
Section 206. Compensation of Directors. No director shall be entitled
to any salary as such, but the Board of Directors may fix, from time to time,
a reasonable annual fee for acting as a director and a reasonable fee to be
paid each director for his or her services in attending meetings of the Board
or committees thereof.
Section 207. Regular Meetings. Regular meetings of the Board of
Directors shall be held on such day, at such hour, and at such place,
consistent with applicable law, as the Board shall from time to time designate
or as may be designated in any notice from the Secretary calling the meeting.
The Board of Directors shall meet for reorganization at the first regular
meeting following the annual meeting of shareholders at which the directors
are elected. Notice need not be given of regular meetings of the Board of
Directors which are held at the time and place designated by the Board of
Directors. If a regular meeting is not to be held at the time and place
designated by the Board of Directors, notice of such meeting, which need not
specify the business to be transacted thereat and which may be either oral or
written, shall be given by the Secretary to each member of the Board at least
twenty-four hours before the time of the meeting.
Section 208. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the Chief Executive
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Officer and shall be called whenever a majority of the members of the Board so
request in writing. A special meeting of the Board of Directors shall be
deemed to be any meeting other than the regular meeting of the Board of
Directors. Notice of the time and place of every special meeting, which need
not specify the business to be transacted thereat and which may be either oral
or written, shall be given by the Secretary to each member of the Board at
least twenty-four hours before the time of such meeting.
Section 209. Reports and Records. The reports of officers and
committees and the records of the proceedings of all committees shall be filed
with the Secretary of the Corporation and presented to the Board of Directors,
if practicable, at its next regular meeting. The Board of Directors shall keep
complete records of its proceedings in a minute book kept for that purpose.
When a director shall request it, the vote of each director upon a particular
question shall be recorded in the minutes.
Section 210. Committees. The following committees of the Board of
Directors may be established by the Board of Directors in addition to any
other committee the Board of Directors may in its discretion establish: (a)
Executive Committee; (b) Audit Committee; and (c) Compensation Committee.
Section 211. Executive Committee. The Executive Committee shall
consist of at least two (2) directors. Meetings of the Committee may be called
at any time by the Chairman of the Executive Committee and shall be called
whenever two or more members of the Committee so request in writing. The
Executive Committee shall have and exercise the authority of the Board of
Directors in the management of the business of the Corporation between the
dates of regular meetings of the Board.
Section 212. Audit Committee. The Audit Committee shall consist of at
least two (2) directors, a majority of which shall be independent. Meetings of
the Audit Committee may be called at any time by the Chairman of the Audit
Committee and shall be called whenever two or more members of the Committee so
request in writing. The Audit Committee shall have the following authority,
powers and responsibilities:
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(a) To recommend each year to the Board the independent
accountants to audit the annual financial statements of the Corporation and
its consolidated subsidiaries and to review the fees charged for such audits
or for special engagements given to such accountants;
(b) To meet with the independent accountants, Chief
Executive Officer, Chief Financial Officer and any other Corporation
executives as the Audit Committee deems appropriate at such times as the Audit
Committee shall determine to review: (i) the scope of the audit plan; (ii) the
Corporation's financial statements; (iii) the results of external and internal
audits; (iv) the effectiveness of the Corporation's system of internal
controls; (v) any limitations imposed by Corporation personnel on the
independent public accountants; and (vi) such other matters as the Audit
Committee shall deem appropriate;
(c) To report to the entire Board at such time as the Audit
Committee shall determine; and
(d) To take such other action as the Audit Committee shall
deem necessary or appropriate to assure that the interests of the Company are
adequately protected.
Section 213. Compensation Committee. The Compensation Committee shall
consist of at least two (2) directors. Meetings of the Committee may be called
at any time by the Chairman of the Committee and shall be called whenever two
or more members of the Committee so request in writing. The Committee shall
review compensation of executive officers and make recommendations to the
Board of Directors regarding executive compensation and shall have such other
duties as the Board of Directors prescribes.
Section 214. Appointment of Committee Members. The Board of Directors
shall appoint or shall establish a method of appointing the members of the
Executive, Audit and Compensation Committees and of any other committee
established by the Board of Directors, and the Chairman of each such
committee, to serve until the next annual meeting of shareholders.
Section 215. Organization and Proceedings. Each committee of the
Board of Directors shall effect its own organization by the appointment of a
Secretary and such other officers, except the Chairman, as it may deem
necessary. The Secretary of the Executive Committee shall be the Secretary of
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the Corporation, but the Secretary of the Audit and Compensation Committees
and of any other committee need not be the Secretary of the Corporation. A
record of the proceedings of all committees shall be kept by the Secretary of
such committee and filed and presented as provided in Section 209 of these
Bylaws.
Section 216. Committees. In the absence or disqualification of any
member of any committee established by the Board of Directors, the members
thereof who are present at any meeting of such committee and are not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another director to act at such meeting in the place of
such absent or disqualified member.
Section 217. Absentee Participation in Meetings. A director may
participate in a meeting of the Board of Directors or a meeting of a committee
established by the Board of Directors by use of a conference telephone or
similar communications equipment, by means of which all persons participating
in the meeting can hear each other.
ARTICLE III. OFFICERS.
Section 301. Officers. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, one or more
Vice Presidents, a Secretary, a Treasurer, and such other officers and
assistant officers as the Board of Directors may from time to time deem
advisable. Except for the Chairman of the Board, Chief Executive Officer,
President, Secretary and Treasurer, the Board may refrain from filling any of
the said officers at any time and from time to time. The same individual may
hold any two or more offices. The following officers shall be elected by the
Board of Directors at the time, in the manner and for such terms as the Board
of Directors from time to time shall determine: Chairman of the Board, Chief
Executive Officer, President, Secretary, and Treasurer. The Chairman of the
Board may appoint such other officers and assistant officers as he may deem
advisable provided such officers or assistant officers have a title no higher
than Vice President, who shall hold office for such periods as the Chairman of
the Board shall determine. Any officer may be removed at any time, with or
without cause, and regardless of the term for which such officer was elected.
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Section 302. Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors and shall preside at the meetings of the
Board and perform such other duties as may be prescribed by the Board of
Directors.
Section 303. Chief Executive Officer. The Chief Executive Officer
shall have general supervision of all of the departments and business of the
Corporation; he or she shall prescribe the duties of the other officers and
employees and see to the proper performance thereof. The Chief Executive
Officer shall be responsible for having all orders and resolutions of the
Board of Directors carried into effect. The Chief Executive Officer shall
execute on behalf of the Corporation and may affix or cause to be affixed a
seal to all authorized documents and instruments requiring such execution,
except to the extent that signing and execution thereof shall have been
delegated to some other officer or agent of the Corporation by the Board of
Directors or by the Chief Executive Officer. The Chief Executive Officer shall
be a member of the Board of Directors. In the absence or disability of the
Chairman of the Board or his or her refusal to act, the Chief Executive
Officer shall preside at meetings of the Board. In general, the Chief
Executive Officer shall perform all the duties and exercise all the powers and
authorities incident to his or her office or as prescribed by the Board of
Directors.
Section 304. President. The President shall perform such duties as
are incident to his or her office or prescribed by the Board of Directors or
the Chief Executive Officer. In the event of the absence or disability of the
Chief Executive Officer or his or her refusal to act, the President shall
perform the duties and have the powers and authorities of the Chief Executive
Officer. The President shall execute on behalf of the Corporation and may
affix or cause to be affixed a seal to all authorized documents and
instruments requiring such execution, except to the extent that signing and
execution thereof shall have been delegated to some other officer or agent of
the Corporation by the Board of Directors or the President.
Section 305. Vice Presidents. The Vice Presidents shall perform such
duties, do such acts and be subject to such supervision as may be prescribed
by the Board of Directors, the Chief Executive Officer or the President. In
the event of the absence or disability of the Chief Executive Officer and the
President or their refusal to act, the Vice Presidents, in the order of their
rank, and within the same rank in the order of their seniority, shall perform
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the duties and have the powers and authorities of the Chief Executive Officer
and President, except to the extent inconsistent with applicable law.
Section 306. Secretary. The Secretary shall act under the supervision
of the Chief Executive Officer and President or such other officer as the
Chief Executive Officer or President may designate. Unless a designation to
the contrary is made at a meeting, the Secretary shall attend all meetings of
the Board of Directors and all meetings of the shareholders and record all of
the proceedings of such meetings in a book to be kept for that purpose, and
shall perform like duties for the standing committees when required by these
Bylaws or otherwise. The Secretary shall keep a seal of the Corporation, and,
when authorized by the Board of Directors, Chief Executive Officer or the
President, cause the seal to be affixed to any documents and instruments
requiring it. The Secretary shall perform such other duties as may be
prescribed by the Board of Directors, Chief Executive Officer, President or
such other supervising officer as the Chief Executive Officer or President may
designate.
Section 307. Treasurer. The Treasurer shall act under the supervision
of the Chief Executive Officer and President or such other officer as the
Chief Executive Officer or President may designate. The Treasurer shall have
custody of the Corporation's funds and such other duties as may be prescribed
by the Board of Directors, Chief Executive Officer, President or such other
supervising officer as the Chief Executive Officer or President may designate.
Section 308. Assistant Officers. Unless otherwise provided by the
Board of Directors, each assistant officer shall perform such duties as shall
be prescribed by the Board of Directors, Chief Executive Officer, President or
the officer to whom he or she is an assistant. In the event of the absence or
disability of an officer or his or her refusal to act, his or her assistant
officers shall, in the order of their rank, and within the same rank in the
order of their seniority, have the powers and authorities of such officer.
Section 309. Compensation. Unless otherwise provided by the Board of
Directors or the Compensation Committee, the salaries and compensation of all
officers and assistant officers, except the Chairman of the Board, Chief
Executive Officer and President, shall be fixed by or in the manner designated
by the Chief Executive Officer.
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Section 310. General Powers. The officers are authorized to do and
perform such corporate acts as are necessary in the carrying on of the
business of the Corporation, subject always to the directions of the Board of
Directors.
ARTICLE IV. PERSONAL LIABILITY AND INDEMNIFICATION.
Section 401. Personal Liability of Directors.
(a) A director of this Corporation shall not be personally
liable for monetary damages as such for any action taken, or any failure to
take any action, unless:
(i) the director has breached or failed to perform
the duties of his office under Chapter 17, Subchapter B of the Pennsylvania
Business Corporation of 1988 (which, as amended from time to time, is
hereafter called the Business Corporation Law); and
(ii) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(b) This Section 401 shall not limit a director's liability
for monetary damages to the extent prohibited by Section 1713(b) of the
Business Corporation Law.
Section 402. Mandatory Indemnification. The Corporation shall, to the
fullest extent permitted by applicable law, indemnify its directors and
officers who were or are a party or are threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (whether or not such action, suit or
proceeding arises or arose by or in the right of the Corporation or other
entity) by reason of the fact that such director or officer is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee, general partner, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise (including service with respect to employee benefit plans), against
expenses (including, but not limited to, reasonable attorneys' and
investigation fees and costs), judgments, fines (including excise taxes
assessed on a person with respect to any employee benefit plan) and amounts
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paid in settlement actually and reasonably incurred by such director or
officer in connection with such action, suit or proceeding, except as
otherwise provided in Section 404 hereof. Persons who were directors or
officers of the Corporation prior to the date this Section is approved by
members of the Corporation, but who do not hold such office on or after such
date, shall not be covered by this Section 402. A director or officer of the
Corporation entitled to indemnification under this Section 402 is hereafter
called a "person covered by Section 402 hereof".
Section 403. Expenses. Expenses incurred by a person covered by
Section 402 hereof in defending a threatened, pending or completed civil or
criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such person to repay such amount
if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation, except as otherwise provided in Section 404.
Section 404. Exceptions. No indemnification under Section 402 or
advancement or reimbursement of expenses under Section 403 shall be provided
to a person covered by Section 402 hereof: (a) with respect to expenses or the
payment of profits arising from the purchase or sale of securities of the
Corporation in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended; (b) if a final unappealable judgment or award establishes
that such director or officer engaged in intentional misconduct or a
transaction from which the director or officer derived an improper personal
benefit; (c) for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, and amounts paid in settlement) which
have been paid directly to, or for the benefit of, such person by an insurance
carrier under a policy of officers' and directors' liability insurance whose
premiums are paid for by the Corporation or by an individual or entity other
than such director or officer; and (d) for amounts paid in settlement of any
threatened, pending or completed action, suit or proceeding without the
written consent of the Corporation, which written consent shall not be
unreasonably withheld. The Board of Directors of the Corporation is hereby
authorized, at any time by resolution, to add to the above list of exceptions
from the right of indemnification under Section 402 or advancement or
reimbursement of expenses under Section 403, but any
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such additional exception shall not apply with respect to any event, act or
omission which occurred prior to the date that the Board of Directors in fact
adopts such resolution. Any such additional exception may, at any time after
its adoption, be amended, supplemented, waived or terminated by further
resolution of the Board of Directors of the Corporation.
Section 405. Continuation of Rights. The indemnification and
advancement or reimbursement of expenses provided by, or granted pursuant to,
this Article IV shall continue as to a person who has ceased to be a member,
director or officer of the Corporation, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 406. General Provisions.
(a) The term "to the fullest extent permitted by applicable
law", as used in this Article IV shall mean the maximum extent permitted by
public policy, common law or statute. Any person covered by Section 402 hereof
may, to the fullest extent permitted by applicable law, elect to have the
right to indemnification or to advancement or reimbursement of expenses,
interpreted, at such person's option; (i) on the basis of the applicable law
on the date this Section was approved by the shareholders; or (ii) on the
basis of the applicable law in effect at the time of the occurrence of the
event, act or omission giving rise to the action, suit or proceeding, or (iii)
on the basis of the applicable law in effect at the time indemnification is
sought.
(b) The right of a person covered by Section 402 hereof to
be indemnified or to receive an advancement or reimbursement of expenses
pursuant to Section 403 (i) may be enforced as a contract right pursuant to
which the person entitled thereto may bring suit as if the provisions hereof
were set forth in a separate written contract between the Corporation and such
person; (ii) to the fullest extent permitted by applicable law, is intended to
be retroactive and shall be available with respect to events, acts or
omissions occurring prior to the adoption hereof; and (iii) shall continue to
exist after the rescission or restrictive modification (as determined by such
person) of any provision of this Article IV with respect to events, acts and
omissions occurring before such rescission or restrictive modification is
adopted.
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(c) If a request for indemnification or for the advancement
or reimbursement of expenses pursuant hereto is not paid in full by the
Corporation within thirty (30) days after a written claim has been received by
the Corporation together with all supporting information reasonably requested
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim (plus interest at
the prime rate announced from time to time by the Corporation's primary
lending bank) and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expenses (including, but not limited to,
attorneys' and investigation fees and costs) of prosecuting such claim.
Neither the failure of the Corporation (including its Board of Directors or
independent legal counsel) to have made a determination prior to the
commencement of such action that indemnification of or the advancement or
reimbursement of expenses to the claimant is proper in the circumstances, nor
an actual determination by the Corporation (including its Board of Directors
or independent legal counsel) that the claimant is not entitled to
indemnification or to the reimbursement or advancement of expenses, shall be a
defense to the action or create a presumption that the claimant is not so
entitled.
(d) The indemnification and advancement or reimbursement of
expenses provided by, or granted pursuant to, this Article IV shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement or reimbursement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
(e) Nothing contained in this Article IV shall be construed
to limit the rights and powers the Corporation possesses under Chapter 17,
Subchapter D of the Business Corporation Law, or otherwise, including, but not
limited to, the powers to purchase and maintain insurance, create funds to
secure or insure its indemnification obligations, and any other rights or
powers the Corporation may otherwise have under applicable law.
(f) The provisions of this Article IV may, at any time (and
whether before or after there is any basis for a claim for indemnification or
for the advancement or reimbursement of expenses pursuant hereto), be amended,
supplemented, waived, or terminated, in whole or in part, with respect to any
person covered by Section 402 hereof by a written agreement signed by the
Corporation and such person.
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(g) The Corporation shall have the right to appoint the
attorney for a person covered by Section 402 hereof, provided such appointment
is not unreasonable under the circumstances.
Section 407. Optional Indemnification. The Corporation may, to
the fullest extent permitted by applicable law, indemnify, and advance or
reimburse expenses for, persons in all situations other than that covered by
Section 402.
ARTICLE V. SHARES OF CAPITAL STOCK.
Section 501. Authority to Sign Share Certificate. Every share
certificate of the Corporation shall be signed by the Chairman, Chief
Executive Officer or the President and by the Secretary or one of the
Assistant Secretaries. If the certificate is signed by a transfer agent or
registrar, the signature of any officer of the Corporation on the certificate
may be facsimile, engraved or printed.
Section 502. Lost or Destroyed Certificates. Any person claiming a
share certificate to be lost, destroyed or wrongfully taken shall receive a
replacement certificate if such shareholder: (a) requests such replacement
certificate before the Corporation has notice that the shares have been
acquired by a bona fide purchaser; (b) files with the Corporation an indemnity
bond deemed sufficient by the Board of Directors; and (c) satisfies any other
reasonable requirements fixed by the Board of Directors.
ARTICLE VI. GENERAL.
Section 601. Fiscal Year. The fiscal year of the Corporation shall
be determined by the Board of Directors.
Section 602. Record Date. The Board of Directors may fix any time
prior to the date of any meeting of shareholders as a record date for the
determination of shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall be not
more than ninety (90) days prior to the date of the meeting of shareholders.
The Board of Directors may fix any time whatsoever (whether or not the same is
more than ninety (90) days) prior to the date for the payment of any dividend
or distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or will go into
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effect, as a record date for the determination of the shareholders entitled to
receive payment of any such dividend or distribution, or to receive any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of shares.
Section 603. Emergency Bylaws. In the event of any emergency
resulting from an attack on the United States, a nuclear disaster or another
catastrophe as a result of which a quorum cannot be readily assembled and
during the continuance of such emergency, the following Bylaw provisions shall
be in effect, notwithstanding any other provisions of these Bylaws.
(a) A meeting of the Board of Directors or of any committee
thereof may be called by any officer or director upon one hour's notice to all
persons entitled to notice whom, in the sole judgment of the notifier, it is
feasible to notify;
(b) The director or directors in attendance at the meeting
of the Board of Directors or of any committee thereof shall constitute a
quorum; and
(c) These Bylaws may be amended or repealed, in whole or in
part, by a majority vote of the directors attending any meeting of the Board
of Directors, provided such amendment or repeal shall only be effective for
the duration of such emergency.
Section 604. Severability. If any provision of these Bylaws is
illegal or unenforceable as such, such illegality or unenforceability shall
not affect any other provision of these Bylaws and such other provisions shall
continue in full force and effect.
ARTICLE VII. AMENDMENTS.
Section 701. Amendment or Repeal by the Board of Directors. Except as
provided by applicable law, these Bylaws may be amended or repealed, in whole
or in part, by a majority vote of the incumbent directors (as defined herein)
on the Board of Directors. The term "incumbent director", as used herein,
shall mean any director of the Corporation on the date hereof and any other
director whose election or appointment by the Board of Directors of the
Corporation, or whose nomination for election by the shareholders of the
Corporation, was approved by a vote of at least a majority of the directors
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then in office who either were directors on the date hereof or whose election
or appointment or nomination for election was previously so approved.
Section 702. Amendment or Repeal by Shareholders. These Bylaws may be
amended or repealed, in whole or in part, by shareholders as follows: (i) in
the case of an amendment or repeal which has previously received the approval
of at least a majority of the incumbent directors (as defined herein) on the
Board of Directors, by the affirmative vote of a majority of the votes cast by
shareholders at any duly convened annual or special meeting of the
shareholders; and (ii) in the case of an amendment or repeal which has not
previously received the approval of at least a majority of the incumbent
directors of the Board of Directors, by the affirmative vote of shareholders
of at least sixty-five percent (65%) of the votes cast by shareholders at any
duly convened annual or special meeting of the shareholders. This Section 702
may be amended or repealed, in whole or in part, only by the affirmative vote
of shareholders of at least sixty-five percent (65%) of the votes cast by
shareholders at any duly convened annual or special meeting of the
shareholders. The term "incumbent director", as used herein, shall mean any
director of the Corporation on the date hereof and any other director whose
election or appointment by the Board of Directors of the Corporation, or whose
nomination for election by the shareholders of the Corporation, was approved
by a vote of at least a majority of the directors then in office who either
were directors on the date hereof or whose election or appointment or
nomination for election was previously so approved.
Section 703. Recording Amendments. The text of all amendments to
these Bylaws shall be attached hereto, and a notation of the date of its
adoption and a notation of whether it was adopted by the directors or the
shareholders shall be made in Section 802 hereof.
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ARTICLE VIII. ADOPTION OF BYLAWS AND RECORD OF AMENDMENTS THERETO.
Section 801. Adoption and Effective Date. The Bylaws were originally
adopted and approved by the Board of Directors of the Corporation on March 25,
1992 and by the shareholders of the Corporation on March 26, 1992. The
Amendment and Restatement of the Bylaws shall be effective on the Effective
Date of the Company's Second Amended Joint Plan of Reorganization dated
September 26, 1997.
Section 802. Amendments to Bylaws.
Section Amended Date Amended Adopted By
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EXHIBIT 2.4
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") is made and dated as of
December 31 1997, between Today's Man, Inc., a Pennsylvania corporation (the
"Company"), and Stocktrans, Inc., a Pennsylvania corporation, as Warrant Agent
(the "Warrant Agent").
WHEREAS, the Company proposes to issue up to 5,439,503 Common Stock
Purchase Warrants (which amount may be increased by an amount not to exceed
6,000 Warrants to accommodate the rounding up of fractional Warrants under the
Plan, as hereinafter defined), as hereinafter described (the "Warrants"), to
purchase shares of New Common Stock, no par value (the "Common Stock"), of the
Company (the Common Stock issuable on exercise of the Warrants being referred
to herein as the "Warrant Shares"). The Warrants will be issued to persons
and/or entities (the "Recipients") pursuant to the Debtors' Second Amended
Joint Plan of Reorganization dated September 26, 1997, as amended (the
"Plan"). Capitalized terms used herein without definition shall have the
meanings specified in the Plan.
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with
the issuance of Warrant Certificates (as defined below) and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the power and
authority granted to and conferred upon it in the Warrant Certificates (as
defined below) 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 terms and provisions with respect to such powers and authority contained
in the Warrant Certificate are subject to and governed by the terms and
provisions hereof.
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Section 2. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form, shall be substantially in the form set
forth in Exhibit "A"attached hereto, 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 on which the Warrants may be listed, or to confirm to usage.
Section 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or its
President, or a Vice President under its corporate seal. Each such signature
upon the Warrant Certificates may be in the form of a facsimile signature of
any present or future Chairman of the Board, President or Vice President, and
may be imprinted or otherwise reproduced on the Warrant Certificates and for
that purpose the Company may adopt and use the facsimile signature of any
person who shall have been Chairman of the Board, President or Vice President,
notwithstanding the fact that at the time the Warrant Certificates shall be
countersigned and delivered or disposed of he shall have cased to hold such
office. 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.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person 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.
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Warrant Certificates shall be dated the date of countersignature by
the Warrant Agent.
Section 4. Registration and Countersignature. The Warrant Agent, on
behalf of the Company, shall number and register the Warrant Certificates in a
register (the "Warrant Register") as they are issued by the Company. The
Warrant Register shall be kept at the office of the Warrant Agent designated
for such purpose and shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time.
Subject to the limitations set forth in the immediately succeeding
paragraph, Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, a Vice President, the Treasurer or the Controller of the
Company, initially countersign, issue and deliver Warrants entitling the
holders thereof ("Holder" or "Warrant Holder") to purchase the Warrant Shares
referred to above in the first recital hereof and shall countersign and
deliver Warrants as otherwise provided in this Agreement.
Up to 5,430,503 Warrant Certificates (which amount may be increased
by an amount not to exceed 6,000 Warrant Certificates to accommodate the
rounding up of fractional shares under the Plan) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this
Agreement or from time-to-time thereafter, evidencing the right to receive a
like number of Warrant Shares. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued upon registration of
transfer or in exchange or substitution for one or more previously
countersigned Warrant Certificates, as hereinafter provided.
In case at any time the name of the Warrant Agent shall be changed
(including by operation of Section 15), and at such time any of the Warrant
Certificates shall be countersigned, but not delivered, the Warrant Agent may
adopt the countersignature under its prior name; and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Certificates either in its prior name or in its
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<PAGE>
changed name and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
The Company, the Warrant Agent and all other Persons (as hereinafter
defined) may deem and treat the registered Holder of the Warrant Certificates
as the absolute owner(s) thereof (notwithstanding any notation of ownership or
other writing thereon made by anyone), for all purposes, and neither the
Company, the Warrant Agent, nor any other Person shall be affected by any
notice to the contrary. As used in this Agreement, the term "Person" means any
individual, sole proprietorship, joint venture, partnership, corporation,
association, cooperative, trust, estate, governmental body, administrative
agency, regulatory authority or other entity of any nature.
Section 5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time-to-time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender thereof (together with
the form of assignment on the reverse side thereof duly filled in) to the
Warrant Agent at its office designated for such purpose accompanied (if so
required by it or the Company) by a written instrument or instruments of
transfer (which shall be in a form reasonably satisfactory to the Warrant
Agent and the Company), duly executed by the registered Holder or Holders
thereof or by the duly appointed legal representative thereof, or by a duly
authorized attorney. Upon any such registration of transfer, a new Warrant
Certificate or Warrant Certificates (of like tenor and representing in the
aggregate a like number of Warrants) shall be issued to the transferee(s)and
the surrendered Warrant Certificate or Warrant Certificates shall be canceled
by the Warrant Agent. Canceled Warrant Certificates shall thereafter be
disposed of by such Warrant Agent in a manner satisfactory to the Company.
Warrant Certificates may be exchanged at the option of the Holder
thereof, when surrendered to the Warrant Agent at its office designated for
such purpose, for another Warrant Certificate or other Warrant Certificates of
like tenor and representing n the aggregate a like number of Warrants. Warrant
Certificates surrendered for exchange shall be canceled by the Warrant Agent.
Such canceled Warrant Certificates shall thereafter be disposed of by such
Warrant Agent in a manner satisfactory to the Company.
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The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, the new Warrant
Certificates required pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrant Certificates duly executed on behalf of the Company for such
purposes.
The Company may require payment of a sum sufficient to cover such
reasonable charges (including, without limitation, any tax or other
governmental charge that may be imposed and the fees and expenses of the
Warrant Agent) as the Company or the Warrant Agent may prescribe in connection
with any exchange or registration of transfer of Warrant Certificates.
Section 6. Terms of Warrants; Exercise of Warrants. Subject to the
terms of this Agreement, each Warrant Holder shall have the right, which may
be exercised commencing at 9:00 a.m., New York City time, on the Issuance
Date, and until 5:00 p.m., New York City time, on the second anniversary of
the Issuance Date, to purchase from the Company the number of fully paid and
nonassessable Warrant Shares which the Holder may at the time be entitled to
receive (the "Exercise Quantity") on exercise of such Warrants and payment of
the Exercise Price (as defined below) then in effect for such Warrant Shares.
Each Warrant not exercised prior to 5:00 p.m., New York City time, on the
second anniversary of the Issuance Date, shall become void and all rights
thereunder and all rights in respect thereof under this Agreement and the
Warrant Certificates shall cease as of such time. If the date on which the
Warrants expire (i.e., the second anniversary of the Issuance Date) or the
date on which they became exercisable (i.e., the Issuance Date) shall not be a
business day, the Warrants shall expire or become exercisable, as the case may
be, on the next succeeding business day.
A Warrant may be exercised upon surrender to the Company at the
office of the Warrant Agent designated for such purpose of the Warrant
Certificate or Certificates evidencing the Warrants to be exercised with the
form of election to purchase on the reverse thereof duly filled in and signed,
which signature shall be guaranteed in accordance with the Medallion Signature
Guarantee Program by a bank or trust company having an office or
correspondence in the United States, or a broker or dealer which is a member
of a registered securities exchange or the National Association of Securities
Dealers, Inc. (together, in the case of a Non-Surviving Combination (as
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<PAGE>
defined below), with such other documentation required to be delivered by
holders of Common Stock before such Holders are entitled to receive
consideration in respect of their shares), and upon payment to the Warrant
Agent for the account of the Company of the Exercise Price for the number of
Warrant Shares in respect of which such Warrants are then exercised. Payment
of the aggregate Exercise Price shall be made in cash or by certified or
official bank check to the order of the Company. The Company shall have the
right to accept personal checks, in its sole and absolute discretion at any
time and from time to time, provided, however, that payment of the Exercise
Price for any Warrant Shares shall not be deemed to have been made until such
personal check has been collected and such funds credited to the Company's
account.
Subject to the provisions of Section 7 hereof, upon such delivery of
Warrants, delivery of required documents and payment of the Exercise Price,
the Company (or the surviving entity in the case of a Non-Surviving
Combination) shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and in such name or names
as the Warrant Holder may designate, a certificate or certificates for the
number of full Warrant Shares (or other cash or property to which the Warrant
Holder is entitled) issuable (or deliverable) upon the exercise of such
Warrants together with cash as provided in Section 13; provided, however, that
after the first public announcement that any consolidation, merger or lease or
sale of assets is proposed to be effected by the Company as described in
subsection (e) of Section 12 hereof, or a tender offer or an exchange offer
for shares of Common Stock of the Company shall be made, upon such surrender
of Warrants, delivery of required documents and payment of the Exercise Price
as aforesaid, the Company shall, as soon as possible, but in any event not
later than five (5) business days thereafter, issue and cause to be delivered
the full number of Warrant Shares issuable upon the exercise of such Warrants
in the manner described in this sentence together with cash as provided in
Section 13. Such certificate or certificates (or such other cash or property)
shall be deemed to have been issued (or delivered), and any person so
designated to be named therein shall be deemed to have become a Holder of
record of such Warrant Shares (or such other cash or property) as of the date
of the surrender of such Warrants, the delivery of required documents and
payment of the Exercise Price.
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Subject to the provisions of this Agreement and the Warrant
Certificates, the Warrants shall be exercisable, at the election of the
Holders thereof, either in full or from time-to-time in part and, in the event
that a certificate evidencing Warrants is exercised in respect of fewer than
all of the Warrant Shares issuable on such exercise at any time prior to the
date of expiration of the Warrants, a new certificate evidencing the remaining
Warrant or Warrants will be issued, and the Warrant Agent is hereby
irrevocably authorized to countersign and to deliver the required new Warrant
Certificate or Certificates pursuant to the provisions of this Section and of
Sections 3 and 4 hereof, and the Company, whenever required by the Warrant
Agent, will supply the Warrant Agent with Warrant Certificates duly executed
on behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled by the Warrant Agent. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay to the Company all monies received
by the Warrant Agent for the purchase of the Warrant Shares through the
exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders during
normal business hours at its office. The Company shall supply the Warrant
Agent from time-to-time with such numbers of copies of this Agreement as the
Warrant Agent may request.
The Warrant Agent shall, from time-to-time, as promptly as
practicable, advise the Company of (i) the numbers of Warrants delivered to it
in accordance with the terms and conditions of this Agreement and the Warrant
Certificates, (ii) the instructions of each Holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Shares or
other cash or property to which such Holder is entitled upon such delivery,
(iii) the delivery of Warrant Certificates evidencing the balance, if any, of
the Warrants remaining after such delivery, and (iv) such other information as
the Company shall reasonably request.
Warrant Holders, as such, shall not be entitled (i) to receive any
dividends in respect of such Holder's Warrant Shares, or (ii) to vote, or to
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receive notice of any meeting of the Company's stockholders, or otherwise
exercise any rights of, or to receive any notices delivered to, Holders of
Common Stock until such Holder surrenders certificates representing such
Holder's Warrants to the Warrant Agent, pays the Exercise Price and delivers
all other required documentation, all as set forth in this Agreement and the
Warrant Certificates, and the Warrant Shares in respect of such Warrant are
issued to such Holder.
Section 7. Payment of Taxes and Governmental Charges. The Company
will pay all documentary stamp taxes attributable to the initial issuance of
Warrant Shares upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or other governmental charge
which may be payable in respect of any transfer or exchange of any Warrants or
Warrant Certificates, as the case may be, including, without limitation, any
transfer involved in the issuance of any Warrant Shares, and if any such
transfer is involved, the Company shall not be required to issue or deliver
any Warrant Shares until such tax or other charge shall have been paid by the
Holder, or it has been established by the Holder to the Company's satisfaction
that no such tax or other charge is due.
Section 8. Mutilated or Missing Warrant Certificates. In any case of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue and the Warrant Agent may countersign, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing
an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and of an indemnity reasonably
satisfactory to the Company. The applicant for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
(prior to the issuance of any Warrant Certificates in accordance with this
Section 8) such other reasonable charges (including, without limitation, any
tax or other governmental charge that may be imposed in relation thereto, and
the fees and expenses of the Warrant Agent in connection therewith) as the
Company or the Warrant Agent may prescribe.
Section 9. Reservation of Warrant Shares. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
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aggregate of its authorized but unissued Common Stock, or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon
the exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of
the Company's capital stock issuable upon the exercise of any Warrants will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with the Transfer Agent and with every
subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition
from time-to-time from such Transfer Agent the stock certificates required to
honor outstanding Warrants upon exercise thereof in accordance with the terms
of this Agreement. The Company will supply such Transfer Agent with duly
executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 13. The Company
will furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto, transmitted to each Holder pursuant to Section
14 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 12 hereof to reduce the Exercise Price below the then par value (if
any) of the Warrant Shares, the Company will take any corporate action which
may, in the opinion of its counsel (which may be counsel employed by the
Company), be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted, and which shall not in any way adversely affect the interests of the
Holders of Warrants.
The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue and payment therefor, be fully
paid, nonassessable, free of preemptive rights and, subject to Section 7, free
from all taxes, liens, charges and security interests with respect to the
issue thereof.
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Section 10. Obtaining Stock Market Listings.
(a) The Company will from time-to-time use its reasonable efforts to
have the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, listed or quoted on the Nasdaq National Market or the principal
securities exchanges or other markets within the United States of America, if
any, on which other shares of Common Stock are then listed or quoted, as the
case may be.
(b) The Company will from time-to-time use its reasonable efforts to
have the Warrants listed or quoted on the Nasdaq National Market or the
principal securities exchanges or other markets within the United States of
America, if any, on which shares of Common Stock are then listed or quoted, as
the case may be.
Section 11. Exercise Price and Exercise Quantity.
(a) The "Exercise Price" per Warrant Share shall equal $2.70, as
adjusted from time-to-time in accordance with this Warrant Agreement.
(b) The term "Exercise Quantity" shall mean one (1) Warrant Share per
Warrant, as adjusted from time-to-time in accordance with this Warrant
Agreement.
Section 12. Adjustment of Exercise Price and Exercise Quantity.
The Exercise Price and Exercise Quantity are subject to adjustment from
time-to-time upon the occurrence of the events enumerated in this Section 12.
(a) Adjustments for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares; or
(4) issues by reclassification of its Common Stock any shares
of its capital stock;
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then the Exercise Price in effect immediately prior to such action shall be
proportionately adjusted (in conjunction with the adjustment proceed for in
Section 12(g) hereof) so that the Holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company which the Holder would have owned immediately following such action if
such Warrant had been exercised immediately prior to such action.
An adjustment made pursuant to this Section 12(a) shall become
effective on the effective date of an event referred to in clauses (1) - (4)
above, retroactive to the record date (if any) for such event.
If after an adjustment pursuant to this Section 12(a), a Holder of a
Warrant upon exercise of the Warrant may receive shares of two or more classes
of capital stock of the Company, the Company's Board of Directors shall
determine the allocation of the adjusted Exercise Price between the classes of
capital stock. After such allocation, the exercise privilege and the Exercise
Price of each class of capital stock shall thereafter be subject to adjustment
on terms comparable to those applicable to Common Stock in this Section.
Any adjustment pursuant to this Section 12(a) shall be made
successively whenever any event listed above shall occur.
(b) Occurrence of Transactions.
For the purpose of any adjustment made pursuant to this Section 12,
any specified event shall be deemed to have occurred at the close of business
on the date of its occurrence.
(c) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the
adjustment, together with any adjustments not previously made and carried
forward as provided in the next sentence, would require an increase or
decrease of at least .1% in the Exercise Price. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Section shall be made to the nearest
cent, or to the nearest 1/100th of a share, as the case may be.
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(d) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide
the notices required by Section 14 hereof.
(e) Reorganization of Company.
If the Company effects a Non-Surviving Combination, upon consummation
of such transaction the Warrants shall automatically become exercisable for
the kind and amount of securities, cash or other assets which the Holder of a
Warrant would have owned immediately after the Non-Surviving Combination if
the Holder had exercised the Warrant immediately before the effective date of
the transaction. Concurrently with the consummation of such transaction, the
Person formed by or surviving any such consolidation, merger or other business
combination if other than the Company, or the Person to which such sale or
conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section. The successor Person shall provide the Escrow Agent for mailing to
Warrant Holders a notice describing the supplemental Warrant Agreement.
For purposes of this Warrant Agreement, "Non-Surviving Combination"
means any merger, consolidation or other business combination by the Company
with one or more other Persons in which any such other Person is the survivor,
or a sale, transfer, lease or other conveyance of all or substantially all of
the assets of the Company to one or more such other Persons (in one
transaction or in two or more related transactions), and with respect to which
cash and/or non-cash consideration is to be distributed to holders of Common
Stock; provided that if any such merger, consolidation, sale, transfer, lease
or other conveyance of assets or other business combination in which the
holders of Common Stock receive cash or non-cash consideration in exchange for
Common Stock is structured so that the Company is the surviving entity, such
transaction shall nevertheless be deemed a Non-Surviving Combination.
If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee Person, that issuer shall join in the
supplemental Warrant Agreement.
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(f) Warrant Agent's Disclaimer.
The Warrant Agent shall have no duty to determine when an adjustment
under this Section 12 should be made, how such adjustment should be made or
the amount of such adjustment. The Warrant Agent has no duty to determine
whether any provisions of a supplemental Warrant Agreement under subsection
(e) of this Section 12 are correct. The Warrant Agent shall make no
representation as to the validity or value of any securities or assets issued
upon exercise of Warrants. The Warrant Agent shall not be responsible for the
Company's failure to comply with this Section.
(g) Adjustment in Exercise Quantity.
Upon each adjustment of the Exercise Price pursuant to this Section
12, each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Common Stock (calculated
to the nearest hundredth) obtained from the following formula:
N' = N x E
-
E'
where:
N' = the adjusted number of Warrant Shares issuable
upon exercise of a Warrant by payment of the
adjusted Exercise Price.
N = the number of Warrant Shares previously issuable
upon exercise of a Warrant by payment of the
Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(h) Form of Warrants.
Irrespective of any adjustments in the Exercise Price, or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
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theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
(i) No Adjustment.
No adjustment of the Exercise Price or the Exercise Quantity shall be
required pursuant to this Section 12 in respect of (i) the issuance of any
securities issued pursuant to, or contemplated by, the Plan, or the exercise
or conversion of any such securities; or (ii) the issuance or exercise of any
option issued pursuant to the Management Stock Option Plan.
Section 13. Fractional Interests. The Company shall not be required
to issue fractional Warrant Shares on the exercise of Warrants. If more than
one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full Warrant Shares which shall be issuable upon
the exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section
13, be issuable on the exercise of any Warrants (or specified portion
thereof), the Company shall pay an amount in cash equal to the Closing Price
(as defined below) on the day immediately preceding the date the Warrant is
presented for exercise, multiplied by such fraction. "Closing Price" shall
equal (i) the last reported sales price of the Common Stock on the principal
national securities exchange on which such Common Stock is listed or admitted
to trading or, if no such reported sale takes place on such date, the average
of the closing bid and asked prices thereon, as reported in The Wall Street
Journal, or (ii) if such Common Stock shall not be listed or admitted to
trading on a national securities exchange, the last reported sales price on
the Nasdaq National Market or, if no such reported sale takes place on any
such date, the average of the closing bid and asked prices thereon, as
reported in The Wall Street Journal, or (ii) if such Common Stock shall not be
quoted on such Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, then the average of the closing bid and asked
prices, as reported by The Wall Street Journal for the over-the-counter market
in which such Common Stock is traded. In the absence of one or more such
quotations, the Board of Directors of the Company shall determine the Closing
Price on the basis of such quotations or other facts as it in good faith
considers appropriate.
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Section 14. Notices to Warrant Holders.
(a) Upon any adjustment of the Exercise Price pursuant to
Section 12, the Company shall promptly thereafter (i) cause to be filed with
the Warrant Agent a certificate of the Company's President, or any Vice
President, and by the Chief Financial Officer (or his functional equivalent,
however titled), setting forth the Exercise Price after such adjustment and
setting forth in reasonable detail the method of calculation and the facts
upon which such calculations are based and setting forth the number of Warrant
Shares (or portion thereof) issuable after such adjustment in the Exercise
Price, upon exercise of a Warrant and payment of the adjusted Exercise Price,
which certificate shall be conclusive evidence of the correctness of the
matters set forth therein, and (ii) cause to be given to each of the
registered Holders of the Warrant Certificates at his address appearing on the
Warrant register written notice of such adjustments by first-class mail,
postage prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 14.
(b) In the event that at any time prior to the expiration of
the Warrants:
(i) the Company shall authorize the issuance to all
holders of shares of Common Stock of rights, options or warrants to subscribe
for or purchase shares of Common Stock or of any other subscription rights or
warrants; or
(ii) the Company shall authorize the distribution to
all holders of shares of Common Stock of evidences of its indebtedness or
assets (other than cash dividends or cash distributions payable out of
consolidated earnings or earned surplus or dividends payable in shares of
Common Stock or distributions referred to in subsection (a) of Section 12
hereof); or
(iii) the Board of Directors shall have approved of
any consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or any sale, lease,
transfer or other conveyance of the properties and assets of the Company
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substantially as an entirety, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a change in par
value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or a tender offer or exchange
offer for shares of Common Stock; or
(iv) the Board of Directors or shareholders of the
Company shall have approved of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(v) the Company proposes to take any action (other
than actions of the character described in Section 12(a)) which would require
an adjustment of the Exercise Price pursuant to Section 12;
then the Company shall cause to be filed with the Warrant Agent and shall
cause to be given to each of the registered Holders of the Warrant
Certificates at his address appearing on the Warrant register, at least
fifteen (15) days prior to the applicable record date, or promptly in the case
of events for which there is no record date, by first-class mail, postage
prepaid, a written notice stating (i) the date as of which the holders of
record of share of Common Stock to be entitled to receive any such rights,
options, warrants or distribution are to be determined, or (ii) the initial
expiration date set forth in any tender offer or exchange offer for shares of
Common Stock, or (iii) the date on which any such consolidation, merger, sale,
lease, transfer or other conveyance, reclassification, change, dissolution,
liquidation or winding up is expected to become effective or consummated, and
the date as of which it is expected that holders of record of shares of Common
Stock shall be entitled to exchange such shares for securities or other
property, if any, deliverable upon such reclassification, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up.
(c) The failure to give the notice required by this Section
14 or any defect therein shall not affect the legality or validity of the
transaction to which it relates.
Section 15. Merger, Consolidation or Change of Name of Warrant Agent.
Any Person into which the Warrant Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to
which the Warrant Agent shall be a party, or any Person succeeding to the
corporate trust or shareholder services business of the Warrant Agent, shall
16
<PAGE>
be the successor to the Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such Person would be eligible for appointment as a
successor warrant agent under the provisions of Section 17. In case at the
time such successor to the Warrant Agent shall succeed to the agency created
by this Agreement, and in case at that time any of the Warrant Certificates
shall have been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the original Warrant Agent;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the
name of the successor to the Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force and effect 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 whose name has been changed may adopt the
countersignature under its prior name, 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 and effect provided in the Warrant Certificates and in this
Agreement.
Section 16. Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the Holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The Warrant Agent acts hereunder as agent and in a
ministerial capacity for the Company, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not, by issuing and
delivering Warrant Certificates, or by any other act hereunder, be deemed to
make any representations as to the validity or value or authorization of the
Warrant Certificates or the Warrants represented thereby or of any securities
or other property delivered upon exercise of any Warrant or whether any stock
issued upon exercise of any Warrant is fully paid and non-assessable.
17
<PAGE>
(b) The Warrant Agent shall not (i) be liable for any
recital or statement of fact contained herein or for any action taken,
suffered or omitted by it in reliance on any Warrant Certificate or other
document or instrument believed by it in good faith to be genuine and to have
been signed or presented by the proper party or parties; (ii) be responsible
for any failure on the part of the Company to comply with any of its covenants
and obligations contained in this Agreement or in any Warrant Certificate;
(iii) be liable for any act or omission in connection with this Agreement
except for its own gross negligence or willful misconduct; or (iv) be liable
for any act or omission made in reliance upon verbal instructions of an
authorized representative of the Company, including its legal counsel.
(c) The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company) and shall incur no
liability or responsibility for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
(d) Any notice, statement, instruction, request, direction,
order or demand of the Company shall be sufficiently evidenced by an
instrument signed by the Chairman of the Board of Directors, President or any
Vice President (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand.
(e) The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its reasonable
expenses hereunder; the Company further agrees to indemnify the Warrant Agent
and save it harmless against any and all losses, expenses and liabilities
arising as a result of the Warrant Agent's actions or omissions hereunder,
except as a result of the Warrant Agent's gross negligence or willful
misconduct.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more registered Holders
18
<PAGE>
of Warrant shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred. All rights of
action under this Agreement, or under any of the Warrants may be enforced by
the Warrant Agent without the possession of any of the Warrants or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall before the ratable benefit
of the registered holders of the Warrants, as their respective rights or
interests may appear.
(g) The Warrant Agent and any stockholder, 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 or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company, or for any other legal
entity.
Section 17. Change of Warrant Agent.
(a) The Warrant Agent may resign its duties and be
discharged from all further duties and liabilities hereunder (except
liabilities arising as a result of the Warrant Agent's own gross negligence or
willful misconduct) after giving thirty (30) days prior written notice of the
Company. At least fifteen (15) days prior to the date such resignation is to
become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the registered Holder of each Warrant Certificate
at the Company's expense. 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 removal and the date when it shall become
effective. Upon such resignation or removal, the Company shall appoint in
writing a new warrant agent. Any removal shall not take effect until the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent.
(b) Any new warrant agent, whether appointed by the Company
or by a court, shall be a bank or trust company having a capital and surplus,
as shown by its last published report to stockholders, of not less than
$10,000,000, or a stock transfer company doing business in the Northeastern
United States. After acceptance in writing of such appointment by the new
19
<PAGE>
warrant agent is received by the Company, such new warrant agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the warrant agent, without any further
assurance, conveyance, act or deed, but if for any reason it shall be
necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning
Warrant Agent. The Warrant Agent shall promptly transfer the books and records
relating to the Warrants to such successor warrant agent. Not later than the
effective date of any such appointment the Company shall file notice hereof
with the resigning Warrant Agent and shall forthwith cause a copy of such
notice to be mailed to the registered Holder of each Warrant Certificate.
(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 a receiver or liquidator of the Warrant Agent or of
its property shall be appointed, 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 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 and, upon acceptance by the
latter of such appointment, the Warrant Agent so succeeded 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 further act, deed or conveyance, shall become vested
with all the authority, rights, powers, immunities, duties and obligations of
such predecessor with like effect as if originally named as 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) If the Company shall fail to make any appointment as
provided in this Section 17 within a period of 30 days, then the registered
20
<PAGE>
Holder of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor Warrant Agent, either by the Company or by such a
court, the duties of the Warrant Agent shall be carried out by the Company.
Section 18. Notices to Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent
or by the registered Holder of any Warrant Certificate to or on the Company
shall be sufficiently given or made when and if deposited in the mail, first
class or registered, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as follows:
Today's Man, Inc.
835 Lancer Drive
Moorestown, NJ 08057
Attention: Chief Financial Officer
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or
by the registered Holder of any Warrant Certificate to the Warrant Agent shall
be sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as
follows:
StockTrans, Inc.
7 E. Lancaster Avenue
Ardmore, PA 19003
Any notice pursuant to this Agreement to be given by the Company or
the Warrant Agent to the Warrant Holders shall be sufficiently given when and
if deposited in the mail, first-class or registered mail, postage prepaid,
addressed to the Warrant Holder at its address as it appears on the Warrant
Register. The Company hereby irrevocably authorizes the Warrant Agent, in the
name and at the expense of the Company, upon the written request of the
21
<PAGE>
Company, to mail any such notice to the Holders upon receipt thereof from the
Company. Any notice which is mailed in the manner herein provided shall be
presumed to have been duly given and received when mailed, whether or not the
Holder receives the notice. Neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to any other Holder.
Section 19. Supplements and Amendments. 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
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein and which shall not
in any way adversely affect the interests of the Holders of Warrants, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not in any way adversely affect the interests of the Holders of
Warrants.
Section 20. Successors. All the 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 21. Termination. This Agreement shall terminate thirty
business days after the second anniversary of the Issuance Date, 5:00 p.m.,
New York City time. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if all Warrants have been exercised. The
provisions of Section 16 shall survive such termination.
Section 22. Return of Unclaimed Cash or Property. Notwithstanding any
provision of this Agreement, cash or other property (including, without
limitation, Warrant Shares) deposited with or paid to the Warrant Agent for
distribution or issuance to Warrant Holders, but remaining unclaimed by the
Warrant Holders for two years after the date upon which such Holders became
entitled to receive such cash or other property, as the case may be, shall be
repaid to the Company by the Warrant Agent on demand and all liability of the
Warrant Agent shall thereupon cease with respect to such cash or property; and
22
<PAGE>
any Warrant Holder shall thereafter look only to the Company for any payment
or distribution which such Holder may be entitled to collect; provided,
however, that the Warrant Agent, before being required to make any such
repayment, may, at the expense of the Company, cause to be published once, in
a newspaper acceptable to the Company, notice that such cash or property
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such cash or property then remaining will be repaid to the Company.
Section 23. Governing Law. THIS AGREEMENT AND EACH WARRANT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
Section 24. Benefits of this Agreement. This Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and the
registered Holders of the Warrant Certificates. Nothing in this Agreement
shall be construed to give to any person or corporation 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.
Section 25. 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.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be duly executed, as of the day and year first above written.
[SEAL] TODAY'S MAN, INC.
Attest: ________________________ By:________________________________
Title:_____________________________
23
<PAGE>
[SEAL] STOCKTRANS, INC.
Attest:___________________________
Secretary
By:_______________________________
Title:____________________________
24
<PAGE>
EXHIBIT A
[Form of Warrant Certificate]
________ WARRANTS TO ACQUIRE COMMON STOCK,
NO PAR VALUE, OF TODAY'S MAN, INC.
EXERCISABLE AFTER DECEMBER 31, 1997 THROUGH DECEMBER 31, 1999
NO. ______
This Warrant Certificate entitles that _____________, or registered
assigns, is the registered holder of _______ Warrants expiring at 5:00 P.M.,
New York City time, on December 31, 1999 or, if such date is not a business
day, the next succeeding business day (the "Warrants") to purchase Common
Stock, no par value per share (the "Common Stock"), of Today's Man, Inc., a
Pennsylvania corporation (the "Company"). The Common Stock issuable upon
exercise of Warrants is hereinafter referred to as the "Warrant Shares."
Subject to the immediately succeeding paragraph, each Warrant entitles the
holder upon exercise to purchase from the Company on or before 5:00 P.M., New
York City time, on December 31, 1999 or, if such date is not a business day,
the next succeeding business day, one fully paid and nonassessable share of
Common Stock per Warrant (a "Warrant Share" and collectively, the "Warrant
Shares")(the "Exercise Quantity") at an initial exercise price equal to $2.70
per Warrant Share (the "Exercise Price"). Such purchase shall be payable in
lawful money of the United States of America in cash or by certified or
official bank check to the order of the Company at the office or agency of the
Warrant Agent, but only subject to the conditions set forth herein and in the
Warrant Agreement (the "Warrant Agreement") referred to on the reverse side
hereof. The Exercise Price and Exercise Quantity are subject to adjustment
upon the occurrence of certain events set forth in the Warrant Agreement.
Terms used herein but not otherwise defined shall have the meanings set forth
in the Warrant Agreement.
No Warrant may be exercised before 9:00 A.M., New York City time, on
January 1, 1998 or, if such date is not a business day, the next succeeding
business day, or after 5:00 P.M., New York City time, on December 31, 1999 or,
if such date is not a business day, the next succeeding business day, and to
the extent not exercised by such time such Warrants shall become void.
A-1
<PAGE>
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
WITNESS the facsimile seal of the Company and the facsimile
signatures of its duly authorized officers.
Dated:________________________ TODAY'S MAN, INC.
ATTEST:
______________________________ BY:_____________________________
Secretary President
Countersigned:
STOCKTRANS, INC.
as Warrant Agent
By:____________________________
Authorized Signature
A-2
<PAGE>
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of up to 5,430,503 Warrants (which amount may be increased by
an amount not to exceed 6,000 Warrants to accommodate the rounding up of
fractional Warrants under the Plan) expiring at 5:00 P.M., New York City time,
on December 31, 1999 or, if such date is not a business day, the next
succeeding business day, entitling the holder on exercise to purchase shares
of Common Stock, no par value per share of the Company (the "Common Stock"),
and are issued or to be issued pursuant to a Warrant Agreement dated as of
December 31, 1997 (the "Warrant Agreement"), duly executed and delivered by
the Company to StockTrans, Inc., a Pennsylvania corporation, as warrant agent
(the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for
a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants. A copy of the Warrant Agreement may be obtained by
the holder hereof upon written request to the Company.
Warrants may be exercised at any time on and after 9:00 A.M., New
York City time, on January 1, 1998 or, if such date is not a business day, the
next succeeding business day, and on or before 5:00 P.M., New York City time,
on December 31, 1999 or, if such date is not a business day, the next
succeeding business day. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate, with
the form of election to purchase set forth hereon properly completed and
executed, together with payment of the Exercise Price in cash or by certified
or official bank check to the order of the Company and the other required
documentation. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common Stock
issuable upon exercise of this Warrant.
A-3
<PAGE>
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will
pay the cash value thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement. The Company may require payment of a sum sufficient to cover such
reasonable charges (including, without limitation, any tax or other
governmental charge that may be imposed and the fees and expenses of the
Warrant Agent) as the Company or the Warrant Agent may prescribe in connection
with any exchange or registration of transfer of Warrant Certificates.
A-4
<PAGE>
Form of Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____ shares of Common
Stock and herewith tenders payment for such shares to the order of ___________
in the amount of $______ in cash or by certified or official bank check in
accordance with the terms hereof. The undersigned requests that a certificate
for such shares be registered in the name of _____________, whose address is
________________________ and that such shares be delivered to ____________
whose address is ___________________. If said number of shares is less than
all of the shares of Common Stock purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
such shares be registered in the name of _____________, whose address is
_______________________, and that such Warrant Certificate be delivered to
_____________, whose address is __________________.
Signature:
Note: The above signature
must correspond with the
name as written upon the
face of this Warrant
Certificate in every
particular, without
alteration or enlargement
or any change whatever
and must be guaranteed in
accordance with the
Medallion Signature
Guarantee Program by a
bank or trust company
having an office or
correspondence in the
United States, or a
broker or dealer which is
a member of a registered
securities exchange or
the National Association
of Securities Dealers,
Inc.
.
Signature Guaranteed By:
A-5
<PAGE>
Form of Assignment
(To Be Executed Upon Assignment of the Warrant)
For value received _____________________ hereby sell, assign and
transfer unto______________________________ the Warrants represented by this
Warrant Certificate, together with all right, title, and interest therein, and
do hereby irrevocably constitute and appoint ____________________ attorney, to
transfer this Warrant Certificate on the books of the Company, with full power
of substitution.
Dated: , 19__
Signature:
Note: The above signature
must correspond with the
name as written upon the
face of this Warrant
Certificate in every
particular, without
alteration or enlargement
or any change whatever
and must be guaranteed in
accordance with the
Medallion Signature
Guarantee Program by a
bank or trust company
having an office or
correspondence in the
United States, or a
broker or dealer which is
a member of a registered
securities exchange or
the National Association
of Securities Dealers,
Inc.
Signature Guaranteed By:
A-6
