EXHIBIT 4.03
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THE SECURITIES
EVIDENCED HEREBY, NOR ANY INTEREST THEREIN, MAY BE OFFERED, SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS EITHER (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND LAWS RELATING THERETO OR (ii) THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM AND SUBSTANCE
TO THE COMPANY, STATING THAT SUCH REGISTRATION IS NOT REQUIRED.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO A PERSON THAT
IS AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE 502 OF REGULATION
D OF THE SECURITIES ACT.
WARRANT
J. BAKER, INC.
Common Stock Subscription Warrant
Warrant to Subscribe [_______], 1999
for shares [________], 1999
Void After [ ], 2004
THIS CERTIFIES that, for value received, [__________], a
[________], or its registered assigns, is entitled to subscribe for and purchase
from J. Baker, Inc., a Massachusetts corporation (hereinafter called the
"Company"), at the price of $5.00 per share (such price as from time to time
adjusted as hereinafter provided being hereinafter called the "Warrant Price"),
at any time on or prior to [_____], 2004, up to [_______]1 (subject to
adjustment as hereinafter provided) fully paid and nonassessable shares of
common stock, par value $[__] per share, of the Company (hereinafter called the
"Common Stock"), subject, however, to the provisions and upon the terms and
conditions hereinafter set forth. This Warrant and any warrant or warrants
subsequently issued upon exchange or transfer hereof and any warrant or warrants
subsequently issued upon exchange or transfer thereof, are hereinafter
collectively called the "Warrants".
Section 1. Exercise of Warrant.
(a) Method of Exercise. Subject to compliance with applicable
law, the rights represented by this Warrant may be exercised by the
holder hereof, at any time or from time to time, in whole or in part,
but not as to a fractional share of Common Stock, by the surrender of
this Warrant (properly endorsed) at the office of the Company as it may
designate by notice in writing to the registered holder hereof at the
address of such holder appearing on the books of the Company, and as
further provided below in this Section 1:
i) Cash Exercise. By payment to the Company of
the Warrant Price in cash or by certified or official bank
check, for each share being purchased;
ii) Net Issue Exercise. By an election to receive
shares of Common Stock the aggregate fair market value of
which as of the date of exercise is equal to the fair market
value of this Warrant (or the portion thereof being canceled)
on such date, in which event the Company, upon receipt of
notice of such election, shall issue to the holder hereof a
number of shares of Common Stock equal to (A) the number of
shares of Common Stock acquirable upon exercise of all or any
portion of this Warrant being canceled, as at such date,
multiplied by (B) the balance remaining after deducting (x)
the Warrant Price, as in effect on such date, from (y) the
fair market value of one share of Common Stock as at such
date, and divided by (C) such fair market value; or
iii) Combined Payment Method. By satisfaction of the
Warrant Price for each share being acquired in combination of
the methods described in clauses (i) and (ii) above.
(b) Definition of Fair Market Value. For the purposes of this
Warrant, "fair market value" shall mean, as to any security, as
follows: (i) if that security is listed or admitted to trading on one
or more national securities exchanges, the average of the last reported
sales prices per share regular way or, in case no such reported sales
take place on any such day, the average of the last reported bid and
asked prices per share regular way, in either case on the principal
national securities exchange on which that security is listed or
admitted to trading, for the 20 trading days immediately preceding the
date upon which the fair market value is determined (the "Determination
Date"); (ii) if that security is not listed or admitted to trading on a
national securities exchange but is quoted by the NASD Automated
Quotation System ("NASDAQ") or any other nationally recognized
quotation service, the average of the last reported sales prices per
share regular way or, in case no reported sale takes place on any such
day or the last reported sales prices are not then quoted by NASDAQ or
such other quotation service, the average for each such day of the last
reported bid and asked prices per share, for the 20 trading days
immediately preceding the Determination Date as furnished by the
National Quotation Bureau Incorporated or corresponding source or any
similar successor organization; or (iii) if that security is not listed
or admitted to trading on a national securities exchange or quoted by
NASDAQ or any other nationally recognized quotation service, the "fair
market value" shall be the fair value thereof determined jointly by the
Company and the registered holders of Warrants outstanding representing
a majority of the shares of Common Stock acquirable upon exercise of
the Warrants; provided, however, that if such parties are unable to
reach agreement within a reasonable time, the "fair market value" shall
be determined in good faith by an independent investment banking firm
selected jointly by the Company and the registered holders of Warrants
outstanding representing a majority of the shares of Common Stock
issuable upon exercise of the Warrants or, if that selection cannot be
made within 15 business days, by an independent investment banking firm
selected by the American Arbitration Association in accordance with its
rules. Anything in this paragraph (b) to the contrary notwithstanding,
the fair market value of this Warrant or any portion thereof as of any
Determination Date shall be equal to (i) the fair market value of the
shares of Common Stock issuable upon exercise of this Warrant (or such
portion thereof) (determined in accordance with the foregoing
provisions of this paragraph (b)); minus (ii) the aggregate Warrant
Price of this Warrant (or such portion thereof).
(c) Delivery of Certificates, Etc. In the event of any
exercise of the rights represented by this Warrant, including any
adjustment thereof pursuant to Section 2 hereof, a certificate or
certificates for the shares of Common Stock so purchased, registered in
the name of the holder, shall be delivered to the holder hereof within
a reasonable time, not exceeding five business days, after the rights
represented by this Warrant shall have been exercised in accordance
with this Section 1; and, unless this Warrant has expired, a new
Warrant representing the number of shares of Common Stock (except a
remaining fractional share), if any, with respect to which this Warrant
shall not then have been exercised shall also be issued to the holder
hereof within such time. The person in whose name any certificate for
shares of Common Stock is issued upon exercise of this Warrant shall
for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of
the Warrant Price and any applicable taxes was made, except that, if
the date of such surrender and payment is a date on which the stock
transfer books of the Company are closed, such person shall be deemed
to have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are open. No
fractional shares shall be issued upon exercise of this Warrant. If any
fractional interest in a share of Common Stock would, except for the
provisions of this Section 1, be delivered upon such exercise, the
Company, in lieu of delivery of a fractional share thereof, shall pay
to the holder hereof an amount in cash equal to the fair market value
of such fractional share as determined in good faith by the Board of
Directors of the Company.
Section 2. Adjustment of Number of Shares. Upon each
adjustment of the Warrant Price as provided in this Section 2, the holder of
this Warrant shall thereafter be entitled to purchase, at the Warrant Price
resulting from such adjustment, the number of shares (rounded to the nearest
whole share) obtained by multiplying the Warrant Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
Warrant Price resulting from such adjustment.
(a) Subdivision or Combination of Stock; Dividends. In case
the Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares or shall declare a
dividend, or make any other distribution, upon its Common Stock payable
in Common Stock or options or other securities exercisable for or
convertible into Common Stock, the Warrant Price in effect immediately
prior to such subdivision or declaration shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock
of the Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall be
proportionately increased.
(b) Adjustment of Price Upon Issuance of Common Stock. If and
whenever the Company shall issue or sell after the date hereof any
shares of its Common Stock for a consideration per share less than the
Warrant Price in effect immediately prior to the time of such issue or
sale, then, upon such issue or sale, the Warrant Price shall be reduced
to the price determined by multiplying such Warrant Price by a
fraction, the numerator of which shall be equal to the sum of (a) the
number of shares of Common Stock outstanding immediately prior to such
issue or sale (including as outstanding all shares of Common Stock
issuable upon exercise of this Warrant) multiplied by the then fair
market value of a share of Common Stock and (b) the consideration, if
any, received by the Company upon such issue or sale, and the
denominator of which shall be equal to the total number of shares of
Common Stock outstanding immediately after such issue or sale
(including as outstanding all shares of Common Stock issuable upon
exercise of this Warrant without giving effect to any adjustment in the
number of shares so issuable by reason of such issue and sale)
multiplied by the then fair market value of a share of Common Stock.
(c) Issuance of Rights, Options or Convertible Securities. In
case at any time the Company shall in any manner grant (whether
directly or by assumption in a merger or otherwise) any rights to
subscribe for or to purchase, or any options for the purchase of (other
than options granted to employees or directors of the Company to
acquire in the aggregate up to 750,000 shares of Common Stock), Common
Stock or any stock or securities convertible into or exchangeable for
Common Stock (such rights or options being herein called "Options" and
such convertible or exchangeable stock or securities being herein
called "Convertible Securities") or issue or sell any Convertible
Securities, whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such
Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of
all such Options, plus, in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such Options)
shall be less than the Warrant Price in effect immediately prior to the
time of the granting of such Options, then the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange or the total maximum amount of such
Convertible Securities issuable upon the exercise of such Options shall
be deemed to have been issued for such price per share as of the date
of granting of such Options and thereafter shall be deemed to be
outstanding. Except as otherwise provided in paragraph (e) below, no
adjustment of the Warrant Price shall be made upon the actual issue of
such Common Stock or of such Convertible Securities upon exercise of
such Options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
(d) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in paragraph (c), the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in paragraph (c), or the rate at
which any Convertible Securities referred to in paragraph (c) are
convertible into or exchangeable for Common Stock shall change at any
time (other than under or by reason of provisions designed to protect
against dilution), the Warrant Price in effect at the time of such
event shall forthwith be readjusted to the Warrant Price which would
have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold; and on the expiration of any
such Option or the termination of any such right to convert or exchange
such Convertible Securities, the Warrant Price then in effect hereunder
shall forthwith be increased to the Warrant Price which would have been
in effect at the time of such expiration or termination had such Option
or Convertible Securities, to the extent outstanding immediately prior
to such expiration or termination, never been issued, and the Common
Stock issuable thereunder shall no longer be deemed to be outstanding.
If the purchase price provided for in any such Option referred to in
paragraph (c) or the rate at which any Convertible Securities referred
to in paragraph (c) are convertible into or exchangeable for Common
Stock shall be reduced at any time under or by reason of provisions
with respect thereto designed to protect against dilution, then in case
of the delivery of Common Stock upon the exercise of any such Option or
upon conversion or exchange of any such Convertible Securities, the
Warrant Price then in effect hereunder shall forthwith be adjusted to
such respective amount as would have obtained had such Option or
Convertible Securities never been issued as to such Common Stock and
had adjustments been made upon the issuance of the shares of Common
Stock delivered as aforesaid, but only if as a result of such
adjustment the Warrant Price then in effect hereunder is thereby
reduced.
(e) Reorganization, Reclassification, Consolidation, Merger or
Sale. If any capital reorganization or reclassification of the capital
stock of the Company or any consolidation or merger of the Company with
another entity, or the sale of all or substantially all of its assets
to another entity shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or
sale, lawful and adequate provisions shall be made whereby each holder
of the Warrants shall thereafter have the right to receive upon the
basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock of the Company immediately theretofore
receivable upon the exercise of such Warrant or Warrants, such shares
of stock, securities or assets (including cash) as may be issued or
payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore so receivable had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in
any such case appropriate provision shall be made with respect to the
rights and interests of such holder to the end that the provisions
hereof (including, without limitation, provisions for adjustments of
the Warrant Price) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of such exercise rights (including an
immediate adjustment, by reason of such reorganization or
reclassification, of the Warrant Price to the value for the Common
Stock reflected by the terms of such reorganization or reclassification
if the value so reflected is less than the Warrant Price in effect
immediately prior to such reorganization or reclassification). In the
event of a merger or consolidation of the Company as a result of which
a greater or lesser number of shares of common stock of the surviving
entity are issuable to holders of Common Stock of the Company
outstanding immediately prior to such merger or consolidation, the
Warrant Price in effect immediately prior to such merger or
consolidation shall be adjusted in the same manner as though there were
a subdivision or combination of the outstanding shares of Common Stock
of the Company. The holders of Warrants shall exercise such Warrants
immediately prior to the consummation of any such reorganization,
reclassification, consolidation, merger or sale in giving effect to any
adjustments required by this Section 2(e).
(f) Notice of Adjustment. Upon any adjustment of the Warrant
Price, then and in each such case, the Company shall give written
notice thereof, by first class mail, postage prepaid, addressed to each
registered holder of the Warrants at the address of such registered
holder as shown on the books of the Company, which notice shall state
the Warrant Price resulting from such adjustment, setting forth in
reasonable detail the method of calculation and the facts upon which
such calculation is based.
(g) Stock to Be Reserved. The Company will at all times
reserve and keep available out of its authorized Common Stock or its
treasury shares, solely for the purpose of issuance upon the exercise
of this Warrant as herein provided, such number of shares of Common
Stock as shall then be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Common Stock which shall be so
issued shall be duly and validly issued and fully paid and
nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the
foregoing, the Company covenants that it will not take any action that
would cause the par value per share of the Common Stock to be an amount
less than the then current Warrant Price. The Company will take all
such action as may be necessary to assure that all such shares of
Common Stock may be so issued without violation of any applicable law
or regulation, or of any requirements of any national securities
exchange upon which the Common Stock of the Company may be listed. The
Company will not take any action which results in any adjustment of the
Warrant Price if the total number of shares of Common Stock issued and
issuable after such action upon exercise of this Warrant would exceed
the total number of shares of Common Stock then authorized by the
Company's Certificate of Incorporation. The Company has not granted and
will not grant any right of first refusal with respect to shares
issuable upon exercise of this Warrant, and there are no preemptive
rights associated with the issuance of such shares.
(h) Issue Tax. The issuance of certificates for shares of
Common Stock upon exercise of the Warrants shall be made without charge
to the registered holders of such Warrants for any issuance tax in
respect thereof; provided that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of
any registered holder of the Warrants.
(i) Closing of Books. The Company will at no time close its
transfer books against the transfer of the shares of Common Stock
issued or issuable upon the exercise of this Warrant in any manner
which interferes with the timely exercise of this Warrant.
(j) Definition of Common Stock. As used herein the term
"Common Stock" shall mean and include the common stock, par value $.50
per share, of the Company as authorized by Articles of Organization of
the Company as in effect on the date hereof (the "Company Charter") and
also any capital stock of any class of the Company thereafter
authorized which shall not be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Company;
provided, however, that the shares purchasable pursuant to this Warrant
shall include only shares designated as common stock, par value $.50
per share, of the Company as authorized for issuance under the Company
Charter, or shares of any class or classes resulting from any
reclassification or reclassifications thereof which are not limited to
any such fixed sum or percentage and are not subject to redemption by
the Company and, in case at any time there shall be more than one such
resulting class, the shares of each class then so issuable shall be
substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such
reclassifications.
No adjustment of the Warrant Price pursuant to this Section 2,
however, shall be made in an amount less than $.0001 per share, and any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.0001 per share or more.
Section 3. Notices of Record Dates. In the event of:
(1) the establishment by the Company of a record date of the
holders of Common Stock for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution
(other than cash dividends out of earned surplus), or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other
right, or
(2) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company or consolidation or merger of the Company, or
(3) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will give notice to the registered
holder of this Warrant specifying (i) the date on which any such record date is
to be established for the purpose of such dividend, distribution or right and
stating the amount and character of such dividend, distribution or right, or
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock will be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be given at
least 20 days and not more than 90 days prior to the date therein specified, and
such notice shall state that the action in question or the record date is
subject to the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), or to a favorable vote of
shareholders, if either is required.
Section 4. Registration Rights. The rights of the holder
hereof with respect to the registration under the Securities Act of the shares
of Common Stock issuable upon the exercise of this Warrant are set forth in the
registration rights agreement, dated the date hereof, among the Company and the
several other persons named therein.
Section 5. No Shareholder Rights or Liabilities. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision hereof, in the absence of affirmative
action by the registered holder hereof to purchase shares of Common Stock, and
no mere enumeration herein of the rights or privileges of the registered holder
hereof, shall give rise to any liability of such registered holder for the
Warrant Price or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
Section 6. Investment Representation and Legend. The
registered holder, by acceptance of this Warrant, represents and warrants to the
Company that it is acquiring this Warrant and will be acquiring the shares of
Common Stock (or other securities) issuable upon the exercise hereof for
investment purposes only and not with a view towards the resale or other
distribution thereof and agrees that the Company may affix upon this Warrant
(and any warrant or warrants subsequently issued upon exchange or transfer of
this Warrant) the following legend:
"NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NEITHER THE
SECURITIES EVIDENCED HEREBY, NOR ANY INTEREST THEREIN, MAY BE OFFERED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS EITHER (i) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND LAWS RELATING
THERETO OR (ii) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY, STATING
THAT SUCH REGISTRATION IS NOT REQUIRED."
The registered holder, by acceptance of this Warrant, further agrees that the
Company may affix the following legend to certificates for shares of Common
Stock issued upon exercise of this Warrant:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. NEITHER THE SECURITIES EVIDENCED HEREBY, NOR ANY
INTEREST THEREIN, MAY BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS EITHER (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND LAWS RELATING THERETO OR (ii) THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE COMPANY, STATING THAT SUCH REGISTRATION IS NOT
REQUIRED."
Section 7. Transfer Restrictions. Until there is an effective
registration statement under the Securities Act covering the sale, transfer or
other disposition of this Warrant or the shares of Common Stock issued upon
exercise of this Warrant, the registered holder of this Warrant, by acceptance
of this Warrant, agrees with the Company that such holder may sell, transfer or
otherwise dispose of this Warrant or the shares of Common Stock issued upon
exercise of this Warrant solely to a person that is an "accredited investor" as
such term is defined in Rule 501 of Regulation D of the Securities Act and that
makes the representations to and agreements with the Company with respect
thereto as may be reasonably specified by the Company.
The registered holder, by acceptance of this Warrant, further
agrees that the Company may affix the following legend to this Warrant and the
certificates for shares of Common Stock issued upon exercise of this Warrant:
"THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY TO A PERSON THAT IS AN "ACCREDITED INVESTOR" AS SUCH
TERM IS DEFINED IN RULE 502 OF REGULATION D OF THE SECURITIES ACT."
Section 8. Lost, Stolen, Mutilated or Destroyed Warrant. If
this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such
terms as to indemnity or otherwise as it may in its discretion reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Company, whether or not the lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
Section 9. Notices. All notices, requests and other
communications required or permitted to be given or delivered hereunder shall be
in writing, and shall be delivered, or shall be sent by certified or registered
mail, postage prepaid and addressed, (i) if to the Company, to it at 55 Turnpike
Street, Canton, Massachusetts 02021, attention: Chief Financial Officer with a
copy to Goodwin, Procter & Hoar, Exchange Place, Boston, Massachusetts 02109,
attention, Raymond C. Zemlin, P.C. or at such other address as shall have been
furnished to the registered holder by notice from the Company or (ii) if to the
registered holder, to such holder at the address specified on the books of the
Company or at such other address as shall have been furnished to the Company by
notice from the holder of this Warrant.
Section 10. Exchange and Transfer of Warrants. The Company
shall keep at its principal business office a register in which the Company
shall provide for the registration of Warrants and for the registration of
transfer and exchange of Warrants. The holder of this Warrant may, at its
option, and either in person or by duly authorized attorney, surrender the same
for registration of transfer or exchange at the principal business office of the
Company, and, at the expense of such holder, receive in exchange therefor a
Warrant or Warrants to purchase such number or numbers of shares of Common Stock
as such holder may request (up to the aggregate number of shares for which this
Warrant is exercisable), and registered in the name of such person or persons as
may be designated by such holder. Every Warrant presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or shall be
accompanied by a written instrument of transfer, satisfactory in form to the
Company, duly executed by the holder of such Warrant or his attorney duly
authorized in writing. Every Warrant so made and delivered in exchange for this
Warrant pursuant to this Section 9 shall in all other respects be in the same
form and have the same terms as this Warrant. No transfer or exchange of any
Warrant shall be valid unless made in the foregoing manner at such office.
Section 11. Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to its conflict of laws rules.
IN WITNESS WHEREOF, J. Baker, Inc. has executed this Warrant
on and as of the day and year first above written.
J. BAKER, INC.
By: /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
SUBSCRIPTION AGREEMENT
To:
Dated:
The undersigned, pursuant to the provisions set forth in the
within Warrant, hereby agrees to subscribe for and purchase [ ] shares of Common
Stock covered by such Warrant, and makes payment herewith in full therefor at
the Warrant Price per share provided by such Warrant [in cash] [as provided in
Section 1(a)(ii) of such Warrant] [_____ shares in cash and ______ shares as
provided in Section 1(a)(ii) of such Warrant].
Signature ___________________
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Address ____________________
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(1) The Warrants in the aggregate will be exercisable for 1,200,000 shares of
Common Stock