Exhibit 10.24
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 JUNE 12, 1996 (THE "PURCHASE AGREEMENT"), BY
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AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION ("HOLDING"), BPC
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MERGERCO, INC., A DELAWARE CORPORATION (THE "ISSUER"), CHASE VENTURE
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CAPITAL ASSOCIATES, L.P. 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: 5,623 Warrant No. 1
WARRANT
to Purchase Class B Common Stock of
BPC MERGERCO, INC.
THIS IS TO CERTIFY THAT CHASE VENTURE CAPITAL ASSOCIATES, L.P.,
or its registered assigns, is entitled to purchase in whole or in part from
time to time from BPC Mergerco, Inc., a Delaware corporation (the
"Issuer"), at any time on and after the Effective Date (as hereinafter
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defined), but not later than 5:00 p.m., New York time, on June 18, 2006
(the "Expiration Date"), 5,623 Stock Units (as hereinafter defined and
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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
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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 June 12, 1996 (as
modified and supplemented and in effect from time to time, the "Purchase
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Agreement") between the Issuer, Holding, Chase Venture Capital Associates,
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L.P. and The Northwestern Mutual Life Insurance Company.
SECTION 1. Certain Definitions. (a) Each capitalized term used
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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
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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.
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"Business Day" shall mean any day on which commercial banks are
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not authorized or required to close in New York City.
"Class B Common Stock" means, the Issuer's Class B Voting Common
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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
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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
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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 Stock Purchase 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 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 in the National
Association of Securities Dealers Automated Quotation System, 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
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page of this Warrant.
"Exercise Notice" shall have the meaning assigned to such term in
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Section 2 hereof.
"Exercise Price" shall have the meaning assigned to such term in
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the first paragraph of this Warrant.
"Expiration Date" shall have the meaning assigned to such term in
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the first paragraph of this Warrant.
"Holder" shall mean the registered holder of this Warrant.
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"include" and "including" shall be construed as if followed by
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the phrase ", without being limited to,".
"Independent Financial Expert" shall mean an investment banking
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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
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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
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first paragraph of this Warrant and shall mean BPC Holding
Corporation after the Merger (as defined in the Purchase Agreement).
"Person" means any individual, corporation, general or limited
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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
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in the second paragraph of this Warrant.
"Regulation Y" shall mean Regulation Y promulgated by the Board
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of Governors of the Federal Reserve System (12 C.F.R. Sec.225), or any
successor regulation.
"Securities Act" shall mean the Securities Act of 1933, as
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amended, and the rules and regulations promulgated thereunder.
"Stockholder" shall mean any Person who directly or indirectly
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owns any shares of Common Stock (including Warrant Stock).
"Stock Unit" shall mean one share of Class B Common Stock, as
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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
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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
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issuable from time to time upon exercise of the Warrants.
"Warrants" shall mean the warrants originally issued by the
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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
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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
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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 5 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.
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)
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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.
Sec. 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.
(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.
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(a) Dividends, Distributions and Purchases.
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(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,
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
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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;
(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
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(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
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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.
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
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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
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Section. The following provisions shall be applicable to the making of
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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
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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
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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
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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
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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, 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
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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 the Closing Date, on a fully
diluted basis.
SECTION 5. Miscellaneous.
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5.01 Office of Issuer. So long as any of the Warrants remains
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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
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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
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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
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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.
5.05 Determination of Current Market Price per share of Common
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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
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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.
IN WITNESS WHEREOF, the Issuer has duly executed this Warrant.
Dated: June 18, 1996
BPC MERGERCO, INC.
By: /s/ Martin R. Imbler
--------------------------------
Name: Martin R. Imbler
Title: President