THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES
OF COMMON STOCK OR OTHER SECURITIES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN
OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY
SATISFACTORY TO COUNSEL FOR THIS CORPORATION, THAT AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
IS AVAILABLE.
No. 1 Warrant to Purchase
63,235
Shares of Common Stock
KASH N' KARRY FOOD STORES, INC.
STOCK PURCHASE WARRANTS
This certifies that, for value received, GREEN EQUITY
INVESTORS, L.P. (the "Holder"), is entitled to purchase from KASH
N' KARRY FOOD STORES, INC., a Delaware corporation (the
"Company"), the aggregate number of shares of Common Stock, at
the option of the Holder, shown above at any time after 9:00
a.m., New York City time, on February 2, 1994 (the "Issue Date")
until 5:00 p.m., New York City time, on the Expiration Date, at a
purchase price per share equal to the Warrant Price.
Section 1. Definitions. As used in this Warrant, and
unless the context requires otherwise, the following terms have
the meaning indicated:
"Common Stock" means the Common Stock of the Company,
par value $.01 per share.
"Expiration Date" means the fifth anniversary of the
Issue Date.
"Warrant Price" has the meaning assigned in Section 8
hereof, subject to adjustment as provided in Section 9.
"Warrant" means this Warrant, as the same may be
amended, supplemented or modified in accordance with the terms
hereof.
"Warrant Shares" means the shares of Common Stock
issued or issuable upon exercise of this Warrant.
Section 2. Term of Warrant; Exercise of Warrant.
2.1 Term of Warrant. Subject to the terms hereof, the
Holder shall have the right, which may be exercised at any time
from and after 9:00 a.m., New York City time, on the Issue Date
and until 5:00 p.m., New York City time, on the Expiration Date,
to purchase from the Company the number of fully paid and non-
assessable Warrant Shares which the Holder may at the time be
entitled to purchase on exercise hereof. If and to the extent
this Warrant not exercised prior to 5:00 p.m., New York City
time, on the Expiration Date, it shall become void and all rights
hereunder and all rights in respect hereof shall cease as of such
time.
2.2 Exercise of Warrant. The Warrant may be exercised
upon surrender to the Company at its office at 6422 Harney Road,
Tampa, Florida 33610, or such other office as the Company shall
notify the Holder, in writing, of this Warrant, together with the
Purchase Form included herein duly completed and signed and upon
payment to the Company of the Warrant Price (as defined in and
determined in accordance with the provisions of Sections 8 and 9
hereof), for the number of Warrant Shares in respect of which
this Warrant is then being exercised.
Unless otherwise agreed to by the Company, all payments
of such Warrant Price shall be made by certified of official bank
check payable to the order of the Company.
Subject to Section 3 hereof, upon the surrender of the
Warrant and payment of the Warrant Price as aforesaid, the
Company shall cause to be issued and delivered with all
reasonable dispatch to or upon the written order of the Holder
and in such name or names as the Holder may designate, a
certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of this Warrant, together with
cash, as provided in Section 10 hereof, in respect of any
fractional Warrant Shares otherwise issuable upon surrender. If
permitted by applicable law, such certificate or certificates
shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the surrender of
this Warrant and payment of the Warrant Price, as aforesaid.
Each share of Common Stock that may be issued upon exercise of
this Warrant will, upon such issuance, be validly issued, fully
paid, non-assessable, and free from all taxes, liens and charges
with respect to the issue thereof. The rights of purchase
represented by this Warrant shall be exercisable, at the election
of the Holder hereof (subject to Section 2.1 hereof), either in
full or from time to time in part and, in the event that this
Warrant is exercised in respect of less than all of the Warrant
Shares purchasable on such exercise at any time prior to the
Expiration Date, a new Warrant evidencing the right to purchase
the remaining Warrant Shares will be issued.
2.3 Compliance with Government Regulations. The
Company shall have the right to refuse to honor the exercise of
this Warrant, in whole or any part, unless the Holder shall
represent to the Company in writing that its purchase of stock or
other securities pursuant thereto is for its own account and for
investment purposes only and not with a view to distribution or
resale in violation of the registration requirements of state or
federal securities laws.
The Company shall not be required to issue or deliver
any certificates representing shares of stock or other securities
purchased upon the exercise of this Warrant prior to (a) the
completion at the expense of the Company of any registration or
other qualification of such shares or other securities under any
state or federal law or rules or regulation of any governmental
regulatory body or self-regulatory organization which counsel for
the Company shall reasonably determine to be necessary or
advisable, (b) the obtaining from the Holder of a written
agreement and representations with respect to the disposition of
the shares or other securities, or with respect to any other
matters, which counsel for the Company shall reasonably determine
to be necessary or advisable to comply with the terms on which
the shares or other securities have been qualified or registered
under any such law, rules or regulations or to exempt the shares
from such qualification or registration, and (c) the obtaining at
the expense of the Company of any approval or other clearance
from any governmental regulatory body or self-regulatory
organization which such counsel may reasonably determine to be
necessary or advisable; provided, however, that compliance with
the provisions of clauses (a), (b) and (c) of this sentence shall
not be required for the issuance of such certificates if the
Holder shall deliver to the Company an opinion of counsel, which
counsel shall be reasonably acceptable to the Company and which
opinion shall be in form and substance reasonably satisfactory to
the Company, to that effect. If compliance with the provisions
of clauses (a), (b) and/or (c) or the preceding sentence shall be
required, the Company shall use its best efforts, at its expense,
promptly to effect such compliance.
Section 3. Payment of Taxes. The Company will pay all
documentary stamp and other taxes, if any, attributable to the
initial issuance of Warrant Shares upon the exercise hereof;
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 involved in the issue or delivery of any
certificates or certificates for Warrant Shares in a name other
than that of the Holder, and the Company shall not register any
such transfer or issue any such certificate until such tax or
governmental charge, if required, shall have been paid.
Section 4. Transfer. Subject to compliance with the
restrictions on transfer set forth herein and subject to Section
3, this Warrant shall be transferable upon delivery of the
Warrant duly endorsed by the Holder or by his duly authorized
attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of
transfer by an attorney, the original power of attorney, duly
approved, or a copy thereof, duly certified, shall be deposited
and remain with the Company. In case of transfer by executors,
administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and
may be required to be deposited and remain with the Company in
its discretion.
Section 5. Exchange of Warrant Certificates. Subject
to the restrictions on transfer contained herein and to such
requirements as the Company may reasonably request to ensure
compliance with applicable law, this Warrant may be exchanged for
another certificate or certificates entitling the Holder hereof
to purchase a like aggregate number of Warrant Shares as this
Warrant shall then entitle the Holder to purchase. The Holder
shall make such request in writing delivered to the Company, and
shall surrender this Warrant, properly endorsed. Thereupon, the
Company shall countersign and deliver to the Holder a new
certificate or certificates, as the case may be, as so requested.
Section 6. Mutilated or Missing Warrants. In case
this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall issue, countersign and deliver in exchange or
substitution hereof, a new Warrant of like tenor and representing
an equivalent right or interest, but only upon, in case this
Warrant is lost, stolen or destroyed, receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction and a reasonable indemnity therefor. The Holder
shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
Section 7. Reservation of Warrant Shares; Purchase of
Warrants.
7.1 Reservation of Warrant Shares. The Company has
reserved out of its authorized Common Stock the number of shares
of Common Stock set forth on the first page hereof for issuance
upon exercise of this Warrant. The Company shall at all times
hereafter until the Expiration Date keep reserved out of its
authorized Common Stock, for issuance upon exercise of this
Warrant, all of the shares not theretofore issued upon such
exercise. If at any time the number of shares of authorized
Common Stock shall not be sufficient to effect the exercise of
this Warrant, the Company will take such corporate action as may
be necessary to increase its authorized but unissued Common
Stock, to such number of shares as shall be sufficient for such
purpose.
Section 8. Warrant Price. Subject to Section 9
hereof, the price at which Warrant Shares shall be purchasable
upon exercise of Warrants (the "Warrant Price") shall be $.435
per share.
Section 9. Adjustment of Warrant Price and Number of
Warrant Shares. The number and kind of securities purchasable
upon the exercise of this Warrant and the Warrant Price shall be
subject to adjustment from time to time upon the happening of
certain events, in each case occurring on and after the date
hereof, as hereinafter described.
9.1 Adjustment. The number and kind of securities
purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend on
its outstanding Common Stock in shares of Common Stock or make a
distribution to all holders of its outstanding Common Stock in
shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities
of the Company (including any such reclassification in connection
with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable
upon exercise hereof immediately prior thereto shall be adjusted
so that the Holder upon exercise hereof shall be entitled to
receive the kind and number of such Warrant Shares or other
securities of the Company which it would have owned or have been
entitled to receive after the happening of any of the events
described above had this Warrant been exercised immediately prior
to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall
become effective on the date of the dividend payment,
subdivision, combination or issuance retroactive to the record
date with respect thereto, if any, for such event. Such
adjustment shall be made successively whenever such an issuance
is made.
(b) In the case the Company shall distribute to all
holders of its outstanding Common Stock evidences of its
indebtedness or assets or securities other than such Common Stock
(excluding regular cash dividends and dividends or distributions
referred to in paragraph (a) above) or rights, options or
warrants, or convertible or exchangeable securities, containing
the right to subscribe for or purchase shares of Common Stock,
then in each case the number of Warrant Shares thereafter
purchasable upon the exercise of this Warrant shall be determined
by multiplying the number of such Warrant Shares theretofore
purchasable upon the exercise of this Warrant by a fraction, of
which the numerator shall be the then current market price per
share of Common Stock (as determined in accordance with paragraph
(e)(3) below) on the date of such distribution, and of which the
denominator shall be the then current market price per share of
Common Stock, less the then fair value per share of outstanding
Common Stock (as determined by the Board of Directors of the
Company, whose good faith determination shall be conclusive) of
the evidences of indebtedness, assets or securities so
distributed or of such rights, options or warrants, or of such
convertible or exchangeable securities. Such adjustment shall be
made successively whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to
the record date for the determination of stockholders entitled to
receive such distribution. No further adjustment shall be made
for the actual issuance of Common Stock upon the conversion,
exercise or exchange of any rights, options, warrants or other
securities in respect of which adjustment has been made pursuant
to this paragraph (b).
(c) In case the Company shall issue shares of Common
Stock (or rights, options, warrants or other securities
convertible into or exercisable or exchangeable for Common Stock)
(excluding (i) shares of Common Stock issued in or as a result of
any of the transactions described in paragraph (a) or (b) above,
(ii) shares of Common Stock issuable upon exercise of stock
options or similar rights granted or to be granted to directors,
employees, consultants, contractors or other agents,
representatives or professionals of the Company pursuant to a
stock option or similar plan approved by the stockholders of the
Company, (iii) shares of Common Stock issued to directors,
employees, consultants, contractors, licensees or other agents,
representatives or professionals of the Company pursuant to any
compensation plan or agreement approved by the stockholders of
the Company, (iv) shares of Common Stock issued pursuant to a
dividend or interest reinvestment plan, or (v) shares of Common
Stock issued in a public offering at a price per share that is
not less than 95% of the then current market price) at a price
per share below the then current market price, then in each such
case the number of Warrant Shares thereafter purchasable upon the
exercise of this Warrant shall be determined by multiplying the
number of Warrant Shares theretofore purchasable upon the
exercise of this Warrant by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on the
date of such issuance (including the shares of Common Stock
issued on the date of such issuance) and the denominator of which
shall be an amount equal to the sum of (i) the total number of
shares of Common Stock outstanding immediately prior to such
issuance plus (ii) the number of shares which the aggregate
consideration received for such issuance would purchase at the
current market price per share of Common Stock (as determined in
accordance with paragraph (e)(3) below) at such record date.
(d) (1) For the purposes of paragraph (c) above, if
the Company shall issue any security, option, warrant or other
right which directly or indirectly may be converted into or
exercised or exchanged for shares of Common Stock, the Common
Stock issuable upon conversion, exercise or exchange of such
securities or rights shall thereupon be deemed to have been
issued and to be outstanding, and the relevant price per share of
Common Stock and the consideration received by the Company upon
conversion, exercise or exchange of such securities or rights
shall be deemed to include the sum of the consideration received
for the issuance of such securities or rights and the minimum
additional consideration payable upon the conversion, exercise or
exchange of such securities or rights. No further adjustment
shall be made for the actual issuance of Common Stock upon the
conversion, exercise or exchange of any such security or right.
(2) For purposes of paragraph (c) above, the
following shall also be applicable: In case the Company shall
issue shares of its Common Stock for a consideration wholly or
partly other than cash, the amount of the consideration other
than cash received by the Company shall be deemed to be the fair
value of such consideration as determined in good faith by the
Board of Directors of the Company. Consideration received by the
Company for issuance of its Common Stock shall be determined in
all cases without deduction therefrom of any expenses,
underwriting commissions or concessions incurred in connection
therewith.
(3) For the purpose of any computation under
paragraph (b) or (c) of this Section, the "current market price
per share" of Common Stock at any date shall be the average of
the daily closing prices for 20 consecutive trading days
commencing 30 trading days before the date of such computation.
The "closing price" for each day shall be the last such reported
sales price regular way or, in case no such reported sale takes
place on such day, the average of the closing bid and asked
prices regular way for such day, in each case on the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if not listed or admitted
to trading, the average of the high bid and low asked prices of
the Common Stock in the over-the-counter market as reported by
NASDAQ or any comparable system. In the absence of one or more
such quotations, the Board of Directors of the Company shall in
good faith determine the current market price on the basis of
such quotations or formula as it considers appropriate, which
determination shall be conclusive.
(e) In any case in which this Section 9.1 shall
require that any adjustment in the number of Warrant Shares be
made effective as of immediately after a record date for a
specified event, the Company may elect to defer until the
occurrence of the event the issuing to the Holder of the Warrant
Shares or other capital stock of the Company issuable upon the
exercise over and above the Warrant Shares or other capital stock
of the Company issuable upon the exercise of this Warrant prior
to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(f) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent
(1%) in the number of Warrant Shares purchasable upon the
exercise of this Warrant; provided, however, that any adjustments
which by reason of this paragraph (f) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one
one-hundredth of a share.
(g) Whenever the number of shares of the Warrant
Shares purchasable upon the exercise of this Warrant is adjusted,
as provided in paragraph (a), (b) or (c) of this Section, the
Warrant Price payable upon exercise of this Warrant shall be
adjusted by multiplying such Warrant Price immediately prior to
such adjustment by a fraction, of which the numerator shall be
the number of Warrant Shares purchasable upon the exercise of
this Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of such Warrant Shares
purchasable immediately thereafter; provided, however, that in no
event shall the Warrant Price be less than the par value, if any,
of a share of Common Stock.
(h) No adjustment in the number of Warrant Shares
purchasable upon the exercise of this Warrant need be made under
paragraph (b) of this Section if the Company issues or
distributes to the Holder the rights, options, warrants,
convertible or exchangeable securities, evidences of indebtedness
or assets referred to in those paragraphs which the Holder would
have been entitled to receive had the Warrant been exercised
prior to the happening of such event or the record date with
respect thereto. No adjustment need be made for a change in the
par value of the Warrant Shares.
(i) For the purpose of this subsection 9.1, the term
"shares of Common Stock," shall mean (i) the class of stock
designated as the Common Stock of the Company, par value $.01 per
share, or (ii) any other class of stock resulting from successive
changes or reclassification of such respective classes of shares
consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. In the event
that at any time, as a result of an adjustment made pursuant to
paragraph (a) above, the Holder shall become entitled to purchase
any securities other than shares of Common Stock, thereafter the
number of such other securities so purchasable upon exercise of
this Warrant and the Warrant Price of such securities shall be
subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in paragraphs (a) through
(h), inclusive, above, and the provisions of Section 3 and
subsections 9.2 through 9.6, inclusive, with respect to the
Warrant Shares, shall apply on like terms to any such other
securities.
9.2 Notice of Adjustment. Whenever the number of
Warrant Shares purchasable upon the exercise of this Warrant or
the Warrant Price of such Warrant Shares is adjusted, as herein
provided, the Company shall promptly mail by first class, postage
prepaid, to the Holder notice of such adjustment or adjustments.
9.3 No Adjustment for Dividends. Except as provided
in subsection 9.1, no adjustment in respect of any dividends or
other payments or distributions made to holders of securities
shall be made during the term of this Warrant or upon the
exercise of this Warrant.
9.4 Preservation of Purchase Rights upon Merger,
Consolidation, etc. In case of any consolidation of the Company
with or merger of the Company with or into another entity
(whether or not the Company is the surviving corporation) or in
case of any sale, transfer or lease to another entity of all or
substantially all the property of the Company, the Company or
such successor or purchasing corporation, as the case may be,
shall execute an agreement that the Holder shall have the right
thereafter upon payment of the Warrant Price in effect
immediately prior to such action to purchase upon exercise of
this Warrant the kind and amount of securities, cash and property
which it would have owned or have been entitled to receive after
the happening of such consolidation, merger, sale, transfer or
lease had this Warrant been exercised immediately prior to such
action. Upon the execution of such agreement, this Warrant shall
be exercisable only for such securities, cash and property. The
Company shall furnish to the Holder notice of the execution of
any such agreement. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9.
The provisions of this subsection 9.4 shall similarly apply to
successive consolidations, mergers, sales, transfers or leases.
9.5 Other Adjustment. If any event occurs as to which
in the reasonable opinion of the Holder, in good faith, the other
provisions of this Section 9 are not strictly applicable but the
lack of any adjustment of the number of Warrant Shares issuable
upon exercise of this Warrant and the Warrant Price would not in
the opinion of the Holder fairly protect the rights of the Holder
in accordance with the basic intent and principles of such
provisions, or if strictly applicable would not fairly protect
the rights of the Holder in accordance with the basic intent and
principles of such provisions, then the Holder may appoint a firm
of independent certified public accountants of recognized
national standing (which may be the independent auditors of the
Company), which shall give their opinion upon the necessity and
form of any required adjustment to the number of Warrant Shares
issuable upon exercise of this Warrant and the Warrant Price, on
a basis consistent with the basic intent and principles
established in the other provisions of this Section 9 necessary
to preserve, without dilution, the exercise rights of the Holder.
Upon receipt of such opinion, the Company shall forthwith make
the adjustments described therein.
9.6 Statement on Warrant. Irrespective of any
adjustments in the Warrant Price or the number or kind of
securities purchasable upon the exercise of this Warrant, this
Warrant may continue to express the same price and number and
kind of shares as are stated herein.
Section 10. Fractional Interests. The Company shall
not be required to issue fractional Warrant Shares on the
exercise of this Warrant. If (a) any fraction of a Warrant Share
would, except for the provisions of this Section 10, be issuable
on the exercise of this Warrant (or specified portion thereof),
and (b) the Holder shall have paid the amount due upon such
exercise with respect to such fractional share, then the Company
shall return to such Holder the amount so paid with respect to
such fractional Warrant Share.
Section 11. Registration under the Securities Act.
The Holder represents and warrants to the Company that it will
not dispose of this Warrant or any Warrant Shares except pursuant
to (i) an effective registration statement, or (ii) an opinion of
counsel, reasonably satisfactory to counsel for the Company, that
the proposed disposition of the Warrant or Warrant Shares would
not be in violation of the registration requirements of the
Securities Act. The Holder represents and warrants that it is
acquiring the Warrant and will acquire the Warrant Shares for its
own account and with no intention of distributing or reselling
this Warrant or Warrant Shares or any part thereof in any
transaction that would be in violation of the registration
requirements of the securities laws of the United States of
America or any state, without prejudice, however, to its rights,
consistent with the provisions of this Warrant, to sell or
otherwise dispose of all or any part of this Warrant or any
Warrant Shares under an effective registration statement under
the Securities Act or under an exemption from such registration
available under the Securities Act.
Section 12. Certificates to Bear Legends. The Warrant
Shares or other securities issued upon exercise of this Warrant
shall be subject to a stop-transfer order and the certificate or
certificates evidencing any such Warrant Shares or securities
shall bear the following legend by which the Holder thereof shall
be bound:
"THE SHARES [OR OTHER SECURITIES] REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD OR OTHERWISE EXCEPT PURSUANT
TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION,
THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 IS AVAILABLE."
Section 13. No Rights as Stockholders; Notices to
Holders. Nothing contained in this Warrant shall be construed as
conferring upon the Holder the right to vote or to receive
dividends or to consent or to receive notice as a stockholder in
respect of any meeting of stockholders of the Company for the
election of the directors of the Company or any matter, or any
rights whatsoever as a stockholder of the Company. If, however
at any time prior to the expiration of this Warrant and prior to
its exercise, any of the following events shall occur:
(a) the Company shall declare any dividend payable in
cash or in any securities upon its shares of Common Stock or
make any distribution to the holders of its shares of Common
Stock;
(b) the Company shall offer to all holders of its
shares of Common Stock any additional shares of Common Stock
or securities convertible into or exchangeable for shares of
Common Stock or any right to subscribe for or purchase any
thereof; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation,
merger, sale, transfer or lease of all or substantially all
of its property, assets and business as an entirety) shall
be proposed;
then in any one or more of said events the Company shall give
notice to the Holder as provided in Section 14 hereof, such
giving of notice to be completed at least 10 days prior to the
record date in the event of a transaction described in clause (a)
above and at least 20 days prior to the record date in the case
of a transaction referred to in clause (b) or (c) above fixed as
a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution, or subscription rights, or for the determination of
the stockholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may
be. Failure to mail or receive such notice or any defect therein
or in the mailing thereof shall not affect the validity of any
action taken in connection with such dividend, distribution or
subscription rights, or such proposed dissolution, liquidation or
winding up.
Section 14. Notices. Any notice pursuant to this
Warrant shall be in writing and shall be given by first class,
registered or certified mail, return receipt requested, telecopy,
courier service or personal delivery, if to the Company, at 6422
Harney Road, Tampa, Florida 33610, Attn: Secretary (or such other
address as shall be communicated by the Company to the Holder by
notice in accordance with this Section 14), and if to the Holder,
at such address as shall be communicated by the Holder to the
Company by notice in accordance with this Section 14 (or, in the
absence of such notice, at such address as otherwise appears on
the books and records of the Company).
Section 15. Supplements and Amendments. The
provisions of this Warrant may not be amended, modified or
supplemented, and waiver or consents to departures from the
provisions hereof may not be given, without the written consent
of the Holder.
Section 16. Successors. All the covenants and
provisions of this Warrant by or for the benefit of the Company
and the Holder shall bind and inure to the benefit of their
respective successors and permitted assigns hereunder, provided
that the Company may not assign its rights and obligations
hereunder except by operation of law.
Section 17. Applicable Law. This Warrant shall be
governed by and construed in accordance with the laws of the
State of New York, without giving effect to principles of
conflicts of laws. The United States District Court for the
Southern District of New York or the courts of the State of New
York shall have jurisdiction in any action or proceeding arising
out of or relating to this Warrant.
Section 18. Benefits of this Agreement. Nothing in
this Warrant shall be construed to give to any person or entity
other than the Company and the Holder, any legal or equitable
right, remedy or claim under this Warrant.
Section 19. Captions. The captions of the Sections
and subsections of this Warrant have been inserted for
convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, this Warrant has been duly
executed, as of February 2, 1994.
KASH N' KARRY FOOD STORES, INC.
By: /s/ R.P. Springer
Name: R.P. Springer
Title: Executive Vice
President