WARRANT
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO THE CONDITIONS SPECIFIED IN THAT CERTAIN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF JUNE 18, 1996 (THE "STOCKHOLDERS
AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, ATLANTIC EQUITY PARTNERS
INTERNATIONAL II, L.P. AND CERTAIN MEMBERS OF MANAGEMENT OF BERRY PLASTICS
CORPORATION, AS SUCH STOCKHOLDERS 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 STOCKHOLDERS
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 THOSE PROVISIONS OF THE STOCKHOLDERS
AGREEMENT WHICH APPLY TO THIS WARRANT.
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, 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.
August 29, 1997
No. of Stock Units: 2,481 Warrant No. B-2
WARRANT
to Purchase Class B Non-Voting Common Stock of
BPC HOLDING CORPORATION
THIS IS TO CERTIFY THAT D. CRAIG RATHBUN, or his 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 Closing Date (as hereinafter defined), but not later than
5:00 p.m., New York time, on August 29, 2007 (the "EXPIRATION DATE"), 2,481
Stock Units (as hereinafter defined and subject to adjustment as provided
herein) at a purchase price of $108.00 per Stock Unit (the "EXERCISE
PRICE"), subject to the terms and conditions provided herein and in the
Reorganization Agreement (as hereinafter defined).
This Warrant is issued pursuant to the Agreement and Plan of
Reorganization dated as of August 29, 1997 (as modified and supplemented
and in effect from time to time, the "REORGANIZATION AGREEMENT") among the
Issuer, Berry Plastics Corporation, VABC Acquisition Corp., Venture
Packaging, Inc. ("Venture"), the subsidiaries of Venture and the
shareholders of Venture.
SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used
herein without definition shall have the meaning assigned thereto (or
incorporated by reference) in the Reorganization 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):
"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 Non-Voting Common
Stock is convertible or exchangeable, as a result of any recapitalization,
reclassification, merger or consolidation of, or deposition of assets by,
the Issuer.
"CLOSING DATE" shall mean the date set forth on the first page of
this Warrant.
"COMMON STOCK" shall mean the Common Stock of the Issuer, of any
class or series whatsoever including, without limitation, the Class B
Common Stock, 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 Reorganization 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 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 the Nasdaq Stock Market, 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.
"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,"
"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.
"JOINDER AGREEMENT" means the Joinder Agreement dated as of the
date hereof pursuant to which the Holder became a party to the Stockholders
Agreement on the terms set forth in the Joinder Agreement.
"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.
"REORGANIZATION AGREEMENT" shall have the meaning assigned to
such term in the second paragraph of this Warrant.
"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).
"STOCKHOLDERS AGREEMENT" means the Amended and Restated
Stockholders Agreement dated as of June 18, 1996, among the Issuer,
Atlantic Equity Partners International II, L.P. and certain members of
management of Berry Plastics Corporation.
"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 Reorganization 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 Reorganization 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 Closing 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.
At the option of the Holder, 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 5 Business Days thereafter, execute or
cause to be executed and deliver or cause to be delivered to the Holder, at
the cost and expense of the Issuer, 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.
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, the right 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) Transfer of
this Warrant and the rights of the Holder hereunder are subject to the
terms of the Joinder Agreement and the Stockholders Agreement.
(b) 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.
(c) 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) 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 Common Stock dividend or
other distribution of Common Stock;
(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.
(b) DIVIDENDS AND DISTRIBUTIONS. 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 (a), (c)(i)(A) and
(d)(i)(A) hereof), then immediately after the occurrence of any such event
the Exercise Price per Stock Unit shall be reduced by the amount of such
dividend paid on each share of Common Stock. For purposes of this Section
4(b), the value of any dividend, paid in a manner other than cash, shall be
the fair value thereof as reasonably determined in good faith by the Board.
(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
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.
(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;
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.
(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, and after such election is made,
this Warrant shall be null and void. 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) 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.
(i) 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 effect any capital reorganization; (v) to effect any consolidation
or merger involving the Issuer or sale, transfer or other disposition of
all or substantially all of its assets; or (vi) 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 or
anticipated date on which such reclassification, issuance, reorganization,
consolidation, merger, sale, transfer, disposition, liquidation,
dissolution or winding up is to take place and the date or anticipated 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, if any. 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.
(j) 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 in connection with the
performance of services at fair market value (as determined by the Board in
its reasonable judgment).
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 11.7 of the Reorganization 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 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.
5.06 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this
Warrant is lost, stolen, mutilated or destroyed, the Corporation shall, on
such terms as to indemnity or otherwise as it may in its discretion impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), at its expense, 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
Corporation, whether or not the allegedly lost, stolen, mutilated or
destroyed Warrant shall be at any time enforceable by anyone.
5.07 JOINDER TO STOCKHOLDER AGREEMENT. Simultaneously with the
receipt of this Warrant, the Holder shall execute and deliver a Joinder
Agreement whereby the Holder shall agree to be bound by the terms of the
Stockholders Agreement, as set forth in such Joinder Agreement.
IN WITNESS WHEREOF, the Issuer has duly executed this Warrant as
of the date first written above.
BPC HOLDING CORPORATION
By: /S/ JAMES M. KRATOCHVIL
------------------------------
James M. Kratochvil
Vice President