WARRANT
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT DATED AS OF MAY 9, 2000 (THE "PURCHASE AGREEMENT"), BY
AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (THE "ISSUER"),
CHASE VENTURE CAPITAL ASSOCIATES, LLC AND THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND
SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE
AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE
OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF
THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE
AGREEMENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION
OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES
LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
No. of Stock Units: 15,599 Warrant No. CBNV-1
WARRANT
to Purchase Class B Non-Voting Common Stock of
BPC HOLDING CORPORATION
THIS IS TO CERTIFY THAT CHASE VENTURE CAPITAL ASSOCIATES, LLC,
or its registered assigns, is entitled to purchase in whole or in part
from time to time from BPC Holding Corporation, a Delaware corporation
(the "ISSUER"), at any time on and after the Effective Date (as
hereinafter defined), but not later than 5:00 p.m., New York time, on May
9, 2010 (the "EXPIRATION DATE"), 15,599 Stock Units (as hereinafter
defined and subject to adjustment as provided herein) at a purchase price
of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and
conditions provided herein and in the Purchase Agreement (as hereinafter
defined).
This Warrant is issued pursuant to the Preferred Stock and
Warrant Purchase Agreement dated as of May 9, 2000 (as modified and
supplemented and in effect from time to time, the "PURCHASE AGREEMENT")
between the Issuer, Chase Venture Capital Associates, LLC and The
Northwestern Mutual Life Insurance Company.
SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term
used herein without definition shall have the meaning assigned thereto
(or incorporated by reference) in the Purchase Agreement and in the
Exhibits thereto.
(b) As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1 or in other
provisions of this Warrant in the singular to have the same meanings when
used in the plural and vice versa):
"AFFILIATE" means, with respect to any specified Person, any
other Person which, directly or indirectly, controls, is under common
control with, or is owned or controlled by, such specified Person. For
purposes of this definition, (i) "control" means, with respect to any
specified Person, either (x) the beneficial ownership of more than
30 percent of any class of equity securities or (y) the power to direct
the management or policies of the specified Person through the ownership
of voting securities, by contract, voting agreement or otherwise and
(ii) the terms "controlling", "control with" and "controlled by", etc.,
shall have meanings correlative to the foregoing.
"BOARD" shall mean the Board of Directors of the Issuer.
"BUSINESS DAY" shall mean any day on which commercial banks are
not authorized or required to close in New York City.
"CLASS B COMMON STOCK" means, the Issuer's Class B Non-Voting
Common Stock, $.01 par value per share, or any other common stock or
other securities receivable thereon, or into which the Class B Common
Stock is convertible or exchangeable, as a result of any
recapitalization, reclassification, merger or consolidation of, or
deposition of assets by, the Issuer.
"COMMON STOCK" shall mean the Common Stock of the Issuer, of
any class or series whatsoever, or any other common stock or other
securities receivable thereon, or into which the Common Stock is
convertible or exchangeable, as a result of any recapitalization,
reclassification, merger or consolidation of, or disposition of assets
by, the Issuer.
"CURRENT MARKET PRICE", shall mean, with respect to a share of
Common Stock as of any date (a) for a period of 30 Business Days after
the date of the IPO, the offering price of such Common Stock or (b) in
any other case (i) the fair market value per share of such Common Stock,
as reasonably determined in good faith by the Board, using an appropriate
valuation method, assuming an arms-length sale to an independent party of
all of the Common Stock of the Issuer, without giving regard to the lack
of liquidity of such Common Stock due to any restrictions contained in
the Stockholders Agreement, the Purchase Agreement or otherwise or any
discount for minority interests and assuming the conversion or exchange
of all securities then outstanding which are convertible into or
exchangeable for such Common Stock and the exercise of all rights and
warrants (including the Warrants) then outstanding and exercisable to
purchase shares of such Common Stock or securities convertible into or
exchangeable for shares of such Common Stock, or (ii) if there shall be a
public market for such Common Stock, the average of the daily market
prices for each day during the 30 consecutive trading days commencing 45
Business Days before such date as of which such a price can be
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established in the manner set forth below. The market price for each
such Business Day shall be the last sale price on such day as reported in
the Consolidated Last Sale Reporting System or as quoted on Nasdaq, or if
such last sale price is not available, the average of the closing bid and
asked prices as reported in either such system, or in any other case the
higher bid price quoted for such day as reported by The Wall Street
Journal and the National Quotation Bureau pink sheets.
"EFFECTIVE DATE" shall mean the date set forth on the signature
page of this Warrant.
"EXERCISE NOTICE" shall have the meaning assigned to such term
in Section 2 hereof.
"EXERCISE PRICE" shall have the meaning assigned to such term
in the first paragraph of this Warrant.
"EXPIRATION DATE" shall have the meaning assigned to such term
in the first paragraph of this Warrant.
"HOLDER" shall mean the registered holder of this Warrant.
"INCLUDE" and "INCLUDING" shall be construed as if followed by
the phrase ", without being limited to,".
"INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking
firm of recognized national standing chosen by the Issuer which is not an
Affiliate of Atlantic Equity Partners International II, L.P. or an
Affiliate or a Stockholder of the Issuer and which is satisfactory to the
holders of a majority in interest of the Warrants and the Warrant Stock.
"IPO" shall mean the Issuer's first firm commitment
underwritten public offering involving the sale of Common Stock of the
Issuer, pursuant to an effective registration statement under the
Securities Act.
"ISSUER" shall have the meaning assigned to such term in the
first paragraph of this Warrant.
"PERSON" means any individual, corporation, general or limited
partnership, joint venture, association, limited liability company, joint
stock company, trust, business trust, bank, trust company, estate
(including any beneficiaries thereof), unincorporated organization,
cooperative, association or governmental branch, authority, agency or
political subdivision thereof.
"PURCHASE AGREEMENT" shall have the meaning assigned to such
term in the second paragraph of this Warrant.
"REGULATION Y" shall mean Regulation Y promulgated by the Board
of Governors of the Federal Reserve System (12 C.F.R. <section>225), or
any successor regulation.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"STOCKHOLDER" shall mean any Person who directly or indirectly
owns any shares of Common Stock (including Warrant Stock).
"STOCK UNIT" shall mean one share of Class B Common Stock, as
such Class B Common Stock is constituted on the date hereof, and
thereafter shall mean such number of shares (including any fractional
shares) of Class B Common Stock and other securities, cash or other
property as shall result from the adjustments specified in Section 4
hereof.
"WARRANT HOLDER" shall mean any Person who acquires Warrants or
Warrant Stock pursuant to the provisions of the Purchase Agreement,
including any transferees of Warrants or Warrant Stock.
"WARRANT STOCK" shall mean all shares of Class B Common Stock
issuable from time to time upon exercise of the Warrants.
"WARRANTS" shall mean the warrants originally issued by the
Issuer pursuant to the Purchase Agreement (of which this Warrant is one),
evidencing rights to purchase up to the aggregate amount of Stock Units
set forth therein, and all Warrants issued upon transfer, division, or
combination of, or in substitution for, such Warrants.
SECTION 2. EXERCISE OF WARRANT. On and after the Effective
Date and until 5:00 p.m., New York time, on the Expiration Date, the
Holder may exercise this Warrant, on one or more occasions, on any
Business Day, in whole or in part, by delivering to the Issuer, at its
office maintained for such purpose pursuant to Section 5.01 hereof, (a) a
written notice of the Holder's election to exercise this Warrant, which
notice shall specify the number of Stock Units to be purchased (the
"EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set
forth below) for the number of Stock Units as to which this Warrant is
being exercised, and (c) this Warrant. The Exercise Price shall be
payable (a) in cash or by certified or official bank check payable to the
order of the Issuer or by wire transfer of immediately available funds to
the account of the Issuer or (b) by delivery of this Warrant Certificate
to the Issuer for cancellation in accordance with the following formula:
in exchange for each share of Class B Common Stock issuable on exercise
of each Warrant represented by this Warrant Certificate that is being
exercised, such holder shall receive such number of shares of Class B
Common Stock as is equal to the product of (i) the number of shares of
Class B Common Stock issuable upon exercise of the Warrants being
exercised at such time multiplied by (ii) a fraction, the numerator of
which is the Current Market Price per share of Class B Common Stock at
such time minus the Exercise Price per share of Class B Common Stock at
such time, and the denominator of which is the Current Market Price per
share of Class B Common Stock at such time.
Upon receipt thereof, the Issuer shall, as promptly as
practicable and in any event within five Business Days thereafter,
execute or cause to be executed and deliver or cause to be delivered to
the Holder a stock certificate or certificates representing the aggregate
number of shares of Warrant Stock and other securities issuable upon such
exercise and any other property to which such Holder is entitled.
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The stock certificate or certificates for Warrant Stock so
delivered shall be in such denominations as may be specified in the
Exercise Notice and shall be registered in the name of the Holder or such
other name or names as shall be designated in such Exercise Notice. Such
stock certificate or certificates shall be deemed to have been issued and
the Holder or any other Person so designated to be named therein shall be
deemed to have become a holder of record of such shares, including, to
the extent permitted by law and to the extent such shares represent
voting stock of the Issuer, the right to vote such shares or to consent
or to receive notice as a Stockholder, as of the date on which the last
of the Exercise Notice, payment of the Exercise Price and this Warrant is
received by the Issuer as aforesaid. If this Warrant shall have been
exercised only in part, the Issuer shall, at the time of delivery of the
certificate or certificates representing Warrant Stock and other
securities, execute and deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Stock Units called
for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant and the same returned to
the Holder.
All shares of Class B Common Stock issuable upon the exercise
of this Warrant shall, upon payment therefor in accordance herewith, be
duly and validly issued, fully paid and nonassessable and free and clear
of any liens, charges or other encumbrances of any nature.
The Issuer shall not be required to issue a fractional share of
Class B Common Stock upon exercise of this Warrant. As to any fraction
of a share which the Holder would otherwise be entitled to purchase upon
such exercise, the Issuer shall pay (at the time this Warrant is
exercised for all shares of Class B Common Stock remaining subject
hereto) a cash adjustment in respect of such final fraction in an amount
equal to the same fraction of the Current Market Price per share of Class
B Common Stock on the date of exercise.
SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a)
Notwithstanding anything herein to the contrary, no holder of Warrants
subject to the provisions of Regulation Y shall transfer any Warrants or
shares of Warrant Stock held by it, if, as a result of such transfer or
the right to effect such transfer, such holder would be deemed under
Regulation Y to have the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Issuer (and,
for purposes of this restriction, a reasoned opinion of counsel to such
holder (which is based on facts and circumstances deemed appropriate by
such counsel) to the effect that such holder does not exercise such a
controlling influence shall be conclusive). For the purposes of this
Section 3(a), a holder of Warrants will not be deemed to be subject to
Regulation Y to the extent such holder is entitled to hold the Warrants
pursuant to 12 C.F.R. <section> 225.22(c)(4).
(b) Subject to the foregoing, this Warrant and all rights
hereunder are transferable (subject to any restrictive legends hereon),
in whole or in part, upon surrender of this Warrant to the Issuer,
together with a written assignment of this Warrant duly executed by the
Holder hereof or such holder's agent or attorney. Such written
assignment shall be in the form of the Assignment Form attached as Annex
B hereto. Upon such surrender the Issuer shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the
denominations specified in such instrument of assignment, and the
original Warrant shall promptly be canceled.
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(c) This Warrant may be exchanged for other Warrants of the
same series upon presentation to the Issuer, together with a written
notice specifying the denominations in which new Warrants are to be
issued, signed by the Holder hereof. The Issuer shall execute and
deliver a new Warrant or Warrants to the holder in exchange for the
Warrant or Warrants to be divided or combined in accordance with such
notice. The Issuer shall pay all expenses, taxes (including transfer
taxes) and other charges payable in connection with the preparation,
issuance and delivery of the Warrants, including any transfer or exchange
thereof.
(d) The Issuer shall maintain books for the registration and
transfer of the Warrants, and shall allow each holder of Warrants to
inspect such books at such reasonable times as such holder shall request.
SECTION 4. ADJUSTMENTS.
(a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES.
(i) If at any time the Issuer shall pay any dividend or make
any other distribution to holders of its Common Stock of any cash,
evidence of indebtedness or other property of any nature whatsoever
(other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A)
hereof), the Issuer shall at the same time pay or distribute to each
holder of Warrants (whether or not such holder exercises such
Warrants) the cash, evidence of indebtedness or other property such
holder would have been entitled to receive if such holder had
exercised such Warrants immediately prior to the record date for
such dividend or distribution.
(ii) If at any time the Issuer shall propose to purchase or
redeem any shares of its Common Stock (other than shares of Class B
or Class C Common Stock validly repurchased or redeemed, solely as
permitted by the terms of the Senior Secured Note Indenture (as
defined in the Amended and Restated Certificate of Incorporation),
pursuant to any management equity subscription, stockholders or
stock option agreement) for cash, evidence of indebtedness or other
property of any nature whatsoever, the Issuer shall deliver to each
holder of Warrants which are by their terms then exercisable for
shares of Warrant Stock a notice of such proposed purchase or
redemption, and each such holder shall, at its option, have the
right to require the Issuer to at the same time purchase or redeem
Warrants and shares of Warrant Stock owned by such holder, in the
same proportion as the number of shares of Common Stock to be so
purchased or redeemed bears to the total number of shares of Common
Stock outstanding at such time, on the same terms and conditions as
the proposed purchase or redemption of such other Common Stock and
for the same consideration per Warrant or share of Warrant Stock, as
the case may be, as is paid to the holders of such other Common
Stock for each share of Common Stock so redeemed or purchased,
minus, in the case of Warrants, the exercise price of the Warrants
to be so purchased or redeemed.
(b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer
shall
(i) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend or other
distribution of Common Stock;
6
(ii) subdivide or reclassify its outstanding shares of Common
Stock into a larger number of shares of Common Stock; or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock;
then immediately after the occurrence of any such event the number of
shares of Warrant Stock comprising a Stock Unit shall be adjusted so as
to equal the number of shares of Warrant Stock which such holder would
have been entitled to receive if such holder had exercised the Warrant
immediately prior to the occurrence of such event.
(c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer
(i)(A) shall take a record of the holders of its Common Stock for the
purpose of entitling them to subscribe for or purchase shares of any
class or series of Common Stock or (B) shall otherwise sell or issue any
such securities and (ii) the consideration per share of Common Stock to
be paid upon such issuance or subscription is less than the Current
Market Price per share of Common Stock on such record date, then the
number of shares of Warrant Stock comprising a Stock Unit shall be
adjusted to be that number determined by multiplying the number of shares
of Warrant Stock comprising a Stock Unit immediately prior to such record
date by a fraction (not to be less than one) (i) the numerator of which
shall be equal to the product of (A) the number of shares of Common Stock
outstanding after giving effect to such issuance, distribution,
subscription or purchase and (B) the Current Market Price per share of
Common Stock determined immediately before such record date and (ii) the
denominator of which shall be equal to the sum of (A) the product of (1)
the number of shares of Common Stock outstanding immediately before such
record date and (2) the Current Market Price per share of Common Stock
determined immediately before such record date and (B) the aggregate
consideration to be received by the Issuer for the total number of shares
of Common Stock to be issued, distributed, subscribed for or purchased.
Aggregate consideration for purposes of the preceding clause (B) shall be
determined as follows: In case any shares of Common Stock shall be
issued or sold for cash, the consideration received therefor shall be
deemed to be the amount payable to the Issuer therefor. In case any
shares of Common Stock shall be issued or sold for a consideration other
than cash payable to the Issuer, the consideration received therefor
shall be deemed to be the fair value of such consideration as determined
by the Board. In case any shares of Common Stock shall be issued in
connection with any merger of another corporation into the Issuer, the
amount of consideration therefor shall be deemed to be the fair value as
determined by the Board of such portion of the assets of such merged
corporation as the Board shall determine to be attributable to such
shares of Common Stock.
(d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In
case at any time the Issuer (i)(A) shall take a record of the holders of
its Common Stock for the purpose of entitling them to subscribe for or
purchase options to purchase or rights to subscribe for Common Stock or
securities directly or indirectly convertible into or exchangeable for
Common Stock (or options or rights with respect to such securities) or
(B) shall otherwise issue or sell any such options, rights or securities
and (ii) the consideration per share for which Common Stock is
deliverable upon exercise of such options or rights or conversion or
exchange of such securities (determined by dividing (x) the total amount
received or receivable by the Issuer in consideration of the issuance of
or subscription for such options, rights or securities, plus the minimum
7
aggregate amount of premiums (if any) payable to the Issuer upon such
exercise, conversion or exchange, by (y) the total maximum number of
shares of Common Stock necessary to effect the exercise, conversion or
exchange of all such options, rights or securities) shall be less than
the Current Market Price per share of Common Stock on such record date or
sale or issuance date, as the case may be, then the number of shares of
Warrant Stock comprising a Stock Unit shall be adjusted to be that number
determined by multiplying the number of shares of Warrant Stock
comprising a Stock Unit immediately prior to such date by a fraction (not
to be less than one) (i) the numerator of which shall be equal to the
product of (A) the total maximum number of shares of Common Stock
outstanding after giving effect to the assumed exercise or conversion of
all such options, rights or securities and (B) the Current Market Price
per share of Common Stock determined immediately before such date and
(ii) the denominator of which shall be equal to the sum of (A) the
product of (1) the number of shares of Common Stock outstanding
immediately before such date and (2) the Current Market Price per share
of the Common Stock determined immediately before such date and (B) the
aggregate consideration per share (determined as set forth in subsection
(ii)(x) and (y) above) for which Common Stock is deliverable upon
exercise conversion or exchange of such options, rights or securities.
Aggregate consideration for purposes of the preceding clause (B) shall be
determined as follows: In case any options, rights or convertible or
exchangeable securities (or options or rights with respect thereto) shall
be issued or sold, or exercisable, convertible or exchangeable for cash,
the consideration received therefor shall be deemed to be the amount
payable to the Issuer (determined as set forth in subsection (ii)(x) and
(y) above) therefor. In case any such options, rights or securities
shall be issued or sold, or exercisable, convertible or exchangeable for
a consideration other than cash payable to the Issuer, the consideration
received therefor (determined as set forth in subsection (ii)(x) and (y)
above) shall be deemed to be the fair value of such consideration as
determined by the Board, after deduction therefrom of any expenses
incurred or any underwriting commissions or concessions or discounts paid
or allowed by the Issuer in connection therewith. In case any such
options, rights or securities shall be issued or sold, or exercisable,
convertible or exchangeable in connection with any merger of another
corporation into the Issuer, the amount of consideration therefor shall
be deemed to be the fair value as determined by the Board of such portion
of the assets of such merged corporation as the Board shall determine to
be attributable to such options, rights or securities.
The Current Market Price per share of Common Stock shall be
determined as set forth in Section 5.05 hereof.
(e) SUPERSEDING ADJUSTMENT. If, at any time after any
adjustment in the number of shares of Warrant Stock comprising a Stock
Unit shall have been made on the basis of the issuance of any options or
rights, or convertible or exchangeable securities (or options or rights
with respect to such securities) pursuant to subsection (d) hereof:
(i) the options or rights shall expire prior to exercise or
the right to convert or exchange any such securities shall
terminate; or
(ii) the consideration per share for which shares of Common
Stock are issuable pursuant to the terms of such options or rights
or convertible or exchangeable securities shall be increased or
decreased, other than under or by reason of provisions designed to
protect against dilution;
8
such previous adjustment shall be rescinded and annulled. Thereupon, a
recomputation shall be made of the effect of such options or rights or
convertible or exchangeable securities with respect to shares of Common
Stock on the basis of
(A) treating the number of shares of Common Stock, if
any, theretofore actually issued or issuable pursuant
to the previous exercise, conversion or exchange of
such options, rights or securities as having been
issued on the date or dates of such exercise,
conversion or exchange and for the consideration
actually received and receivable therefore, and
(B) treating any such options, rights or securities which
then remain outstanding as having been granted or
issued immediately after the time of such increase or
decrease for the consideration per share for which
shares of Common Stock are issuable upon exercise,
conversion or exchange of such options, rights or
securities.
To the extent called for by the foregoing provisions of this Section 4(e)
on the basis aforesaid, a new adjustment in the number of shares of
Warrant Stock comprising a Stock Unit shall be made, determined using the
Current Market Price used at the time of the original determination,
which new adjustment shall supersede the previous adjustment so rescinded
and annulled. If the exercise, conversion or exchange price provided for
in any such option, right or security shall decrease at any time under or
by reason of provisions designed to protect against dilution, then in the
case of the delivery of shares of Common Stock upon the exercise,
conversion or exchange of any such option, right or security, the Stock
Unit purchasable upon the exercise of a Warrant shall forthwith be
adjusted in the manner which would have obtained had the adjustment made
upon issuance of such option, right or security been made upon the basis
of the issuance of (and the aggregate consideration received for) the
shares of Common Stock delivered as aforesaid.
(f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS
SECTION. The following provisions shall be applicable to the making of
adjustments of the number of shares of Warrant Stock comprising a Stock
Unit:
(i) The sale or other disposition of any issued shares of
Common Stock owned or held by or for the account of the Issuer shall
be deemed to be an issuance thereof for purposes of this Section.
(ii) In computing adjustments under this Section, fractional
interests in Common Stock shall be taken into account to the nearest
one-thousandth of a share.
(iii) If the Issuer shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend
or distribution or subscription or purchase rights and shall,
thereafter and before the distribution thereof, legally abandon its
plan to pay or deliver such dividend, distribution, subscription or
purchase rights, then thereafter no adjustment shall be required by
reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
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(g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the
Issuer shall merge or consolidate with another corporation, or shall
sell, transfer or otherwise dispose of all or substantially all of its
assets to another corporation and pursuant to the terms of such merger,
consolidation or disposition of assets, cash, shares of common stock or
other securities of the successor or acquiring corporation, or property
of any nature is to be received by or distributed to the holders of
Common Stock of the Issuer, then each holder of Warrants which are by
their terms then exercisable shall, at such holder's election, have the
right to receive (whether or not such holder exercises such Warrants) the
amount it would have been entitled to receive if such holder had
exercised such Warrants immediately prior to the occurrence of such
merger, consolidation or disposition of assets, net of the exercise price
of such Warrants. In case of any such merger, consolidation or
disposition of assets in which the foregoing election is not made, the
successor or acquiring corporation (and any affiliate thereof issuing
securities) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to
be performed and observed by the Issuer and all of the obligations and
liabilities hereunder, subject to such modifications as may be deemed
appropriate (as determined by resolution of the Board and reasonably
acceptable to the holders of a majority in interest of the Warrants) in
order to provide for adjustments of Stock Units which shall be as nearly
equivalent as practicable to the adjustments provided for in this
Section. The foregoing provisions shall similarly apply to successive
mergers, consolidations and dispositions of assets.
(h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or
from time to time the Issuer shall take any action affecting its Common
Stock, other than an action described in any of the foregoing subsections
of this Section or an action taken in the ordinary course of the Issuer's
business and consistent with past practice, then, unless in the
reasonable opinion of the Board such action will not have a material
adverse effect upon the rights of the holders of the Warrants, the number
of shares of Warrant Stock comprising a Stock Unit shall be adjusted in
such manner and at such time as the Board shall in good faith determine
to be equitable in the circumstances, but no such adjustment shall
decrease the number of shares of Warrant Stock comprising a Stock Unit.
(i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of
Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this
Agreement, the Issuer shall forthwith obtain a certificate signed by a
firm of independent accountants of recognized national standing selected
by the Issuer, setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was calculated and
specifying the number of shares of Warrant Stock comprising a Stock Unit,
after giving effect to such adjustment or change. The Issuer shall
promptly cause a signed copy of such certificate to be delivered to each
holder of Warrants. The Issuer shall keep at its office copies of all
such certificates and cause the same to be available for inspection at
said office during normal business hours by any holder of Warrants or any
prospective purchaser of Warrants designated by the registered holder
hereof.
(j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall
propose (i) to pay any dividend to the holders of its Common Stock or to
make any other distribution to the holders of its Common Stock; (ii) to
offer to the holders of its Common Stock rights to subscribe for or to
purchase any additional shares of Common Stock (or options or rights with
respect thereto); (iii) to effect any reclassification of its Common
Stock; (iv) to otherwise issue any Common Stock or other securities; (v)
to effect any capital reorganization; (vi) to effect any consolidation,
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merger or sale, transfer or other disposition of all or substantially all
of its assets; or (vii) to effect the liquidation, dissolution or winding
up of the Issuer, then, in each such case, the Issuer shall give to each
holder of Warrants a notice of such proposed action, which shall specify
the date on which a record is to be taken for the purposes of such
dividend, distribution or rights offer, or the date on which such
reclassification, issuance, reorganization, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution or winding up is to take
place and the date of participation therein by the holders of Common
Stock, if any such date is to be fixed, and shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate
the effect of such action on the Common Stock, and the number of shares
of Warrant Stock which will comprise a Stock Unit after giving effect to
any adjustment which will be required as a result of such action. Such
notice shall be so given in the case of any action covered by clause (i)
or (ii) above at least 20 days prior to the record date for determining
holders of the Common Stock for purposes of such action, and in the case
of any other such action, at least 20 days prior to the date of the
taking of such proposed action or the date of participation therein by
the holders of Common Stock, whichever shall be the earlier.
(k) NO ADJUSTMENT NECESSARY. Anything to the contrary herein
notwithstanding, no adjustment to the number of shares of Warrant Stock
comprising a Stock Unit shall be made as a result of, or in connection
with, the issuance of shares of Common Stock, or options or warrants to
purchase shares of Common Stock, to management at fair market value (as
determined by the Board in its reasonable judgment) in an amount up to
12% of the outstanding shares of Common Stock on June 12, 1996, on a
fully diluted basis.
SECTION 5. MISCELLANEOUS.
5.01 OFFICE OF ISSUER. So long as any of the Warrants remains
outstanding, the Issuer shall maintain an office in the continental
United States of America where the Warrants may be presented for
exercise, transfer, division or combination as in this Warrant provided.
Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710,
unless and until the Issuer shall designate and maintain some other
office for such purposes and give notice thereof to all Warrant Holders.
5.02 NOTICES GENERALLY. Any notices and other communications
pursuant to the provisions hereof shall be sent in accordance with the
provisions of Section 8.6 of the Purchase Agreement.
5.03 GOVERNING LAW. The corporate law of the State of
Delaware shall govern all issues concerning the relative rights of the
Issuer and its Stockholders. All other issues hereunder shall be
governed by and construed in accordance with the procedural and
substantive laws of the State of New York without regard for its
conflicts of laws rules. The Issuer agrees that it may be served with
process in State of New York and any action for breach of this Warrant
may be prosecuted against it in the courts of that State.
5.04 LIMITATION OF LIABILITY. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Class B
Common Stock, and no mere enumeration herein of the rights or privileges
of the Holder, shall give rise to any liability of the Holder for the
11
Exercise Price or as a Stockholder of the Issuer, whether such liability
is asserted by the Issuer, by any creditor of the Issuer or any other
Person.
5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON
STOCK. The Current Market Price per share of Common Stock shall in each
instance initially be determined by the Issuer in accordance with the
provisions of the definition of Current Market Price in Section 1 hereof.
The Issuer shall notify the Holders of such determination. If the
holders of a majority in interest of the Warrants disagree with the
determination of the Issuer, the Issuer shall appoint an Independent
Financial Expert to determine the Current Market Price per share of
Common Stock and the determination of the Independent Financial Expert
shall govern for purposes of determining the adjustment pursuant to this
Section. The Issuer shall notify each holder of Warrants of the final
determination of the Current Market Price per share of Common Stock. The
Issuer shall pay the fees and expenses of the Independent Financial
Expert.
5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be
entitled to the benefit of the provisions of Article 6A and Article 6C of
the Purchase Agreement with regard to the registration for sale of the
Warrant Stock.
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IN WITNESS WHEREOF, the Issuer has duly executed this Warrant.
Dated: May 9, 2000
BPC HOLDING CORPORATION
By: /S/ JAMES KRATOCHVIL
Name: James Kratochvil
Title: Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
Annex A
to
Warrant
FORM OF EXERCISE
(To be executed by the registered holder hereof)
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of Stock Units of the Issuer, and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant, and requests that (i) certificates
and/or other instruments covering such Stock Units be issued in
accordance with the instructions given below and (ii) if such Stock Units
shall not include all of the Stock Units to which the Holder is entitled
under this Warrant, that a new Warrant of like tenor and date for the
unpurchased balance of the Stock Units issuable hereunder be delivered to
the undersigned.
Dated: __________________
________________________________
(Signature of Registered Holder)
Instructions for issuance and
registration of Stock Units:
_______________________________
Name of Registered Holder
(please print)
Social Security or Other Identifying
Number: _________________________
Please deliver certificate to
the following address:
____________________________________
Street
_____________________________________
City, State and Zip Code
Annex B
to
Warrant
FORM OF ASSIGNMENT
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the assignee named below
all the rights of the undersigned under this Warrant with respect to the
number of Stock Units covered thereby set forth hereinbelow unto:
Number of
NAME OF ASSIGNEE ADDRESS STOCK UNITS
Dated:__________________
________________________________
(Signature of Registered Holder)
________________________________
Name of Registered Holder
(Please Print)
Witness:
______________________