EXHIBIT 4.7
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF
SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
STOCK PURCHASE WARRANT
Date of Issuance: January 23, 2003 Certificate No. _____
For value received, FRANK'S NURSERY & CRAFTS, INC., a Delaware
corporation (the "Company"), hereby grants to KIMCO REALTY SERVICES, INC., a
Delaware corporation, or its permitted transferees and assigns, the right to
purchase from the Company a total of 5,000,000 Warrant Shares (as defined
herein) at a price per share of $2.00 (the "Initial Exercise Price"). The
exercise price and number of Warrant Shares (and the amount and kind of other
securities) for which this Warrant is exercisable shall be subject to adjustment
as provided herein. Certain capitalized terms used herein are defined in Section
4 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this
Warrant may be exercised, in whole or in part, at any time and from time to time
after the date hereof to and including 5:00 p.m., New York City time, on the
later of (a) May 20, 2005, (b) the date that the Obligations (as defined under
the Credit Agreement (as defined herein)) are irrevocably and indefeasibly paid
in full and (c) the Facility Termination Date (as defined under the Credit
Agreement), in the case of any of clauses (a), (b) or (c), if such day is not a
business day, on the next preceding business day (the "Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been
exercised when all of the following items have been delivered to the Company
(the "Exercise Time"):
(a) a completed Exercise Agreement, as described
in Section IC below, executed by the Person exercising all or part of
the purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder,
an Assignment or Assignments in the form set forth in Exhibit II hereto
evidencing the assignment of this Warrant to the Purchaser; and
(d) any (including any combination) of the
following: (x) a check payable to the Company in an amount equal to the
product of the Exercise Price (as such term is defined in Section 2)
multiplied by the number of Warrant Shares being purchased upon such
exercise (the "Aggregate Exercise Price") or (y) in the event the
Purchaser is a Lender (as defined under the Credit Agreement), an
Affiliate of a Lender (as defined in the Credit Agreement), a
Participant (as defined under the Loan Participation Agreement) or an
Affiliate of a Participant (as defined under the Loan Participation
Agreement), in each case, by the application of unpaid principal amount
of the Loans (as defined in the Credit Agreement) in the following
order of priorities: (A) first, the Term Loan (as defined in the Credit
Agreement) of the Company and (B) second, any Revolving Credit Loan (as
defined in the Credit Agreement), in the case of either (A) or (B),
having a value equal to the Aggregate Exercise Price of the Warrant
Shares being purchased upon such exercise.
(ii) Upon the exercise of this Warrant pursuant to
Section 1B(i)(d)(x), the Purchaser may require the Company to use all or a
portion of the cash proceeds received upon such exercise to repay in the
following order of priority: first, any and all amounts due under any Term Loan
and, second, any and all amounts due under any Revolving Credit Loan. Such
repayment shall be in accordance with the written instructions of the Purchaser
and shall be made within two business days of receipt by the Company of such
instructions.
(iii) Certificates for Warrant Shares purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within five (5) days after the date of the Exercise Time together with any cash
payable in lieu of a fraction of a share pursuant to Section 13 hereof. Unless
this Warrant has expired or all of the purchase rights represented hereby have
been exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall, within such five-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise Agreement
(as defined in Section 1C below).
(iv) Upon any exercise of this Warrant pursuant to
Section 1B(i)(d)(y) and the instructions set forth in the Exercise Agreement,
the Company will accept the principal amount of indebtedness specified in such
Exercise Agreement in satisfaction of a like amount of such payment. Nothing in
this section shall affect the rights of any Lender (as defined in the Credit
Agreement) to receive interest payable on any Loan (as defined in the Credit
Agreement) on the related interest payment date in accordance with the terms of
the Credit Agreement, including interest accrued but unpaid on the principal
amount of the Term Loan (as defined under the Credit Agreement) and any
Revolving Credit Loan (as defined under the Credit Agreement) applied to the
Aggregate Exercise Price pursuant to Section 1B(i)(d) for the period prior to
such application.
(v) The Warrant Shares issuable upon the exercise of
this Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, the Purchaser shall be deemed for all purposes to have become the
Registered Holder of such Warrant Shares at the Exercise Time and the prepayment
of the portion of the Loan (as defined under the Credit
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Agreement) being prepaid as a result of such exercise shall be deemed for all
purposes to have occurred at the Exercise Time.
(vi) The issuance of certificates for Warrant Shares
upon exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the related
issuance of Warrant Shares.
(vii) The Company shall not close its books against
the transfer of this Warrant or of any Warrant Shares issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Warrant Shares acquirable upon exercise of this Warrant is at all times
equal to or less than the Exercise Price then in effect.
(viii) The Company shall assist and cooperate with
any reasonable request by the Registered Holder or any Purchaser which is
required to make any governmental filings or obtain any governmental approvals
prior to or in connection with any exercise of this Warrant.
(ix) Notwithstanding any other provision hereof, if
an exercise of any portion of this Warrant is to be made in connection with a
public offering or a sale of the Company (pursuant to a merger, sale of stock or
otherwise), such exercise may at the election of the Registered Holder be
conditioned upon the consummation of such transaction, in which case such
exercise shall not be deemed to be effective until immediately prior to
consummation of such transaction.
(x) The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock (or out of shares of
Common Stock held in its treasury) solely for the purpose of issuance upon the
exercise of this Warrant, the maximum number of Warrant Shares issuable upon the
exercise of this Warrant. All Warrant Shares which are so issuable shall, when
issued and upon the payment of the applicable Exercise Price, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens,
charges and preemptive rights. The Company shall take all such actions as may be
necessary to ensure that all such Warrant Shares may be so issued without
violation by the Company of any applicable law or governmental regulation or any
requirements of any domestic securities exchange or quotation system upon which
shares of Common Stock or other securities constituting Warrant Shares may be
listed or quoted (except for official notice of issuance which shall be
immediately delivered by the Company upon each such issuance). The Company will
use its best efforts to cause the Warrant Shares, immediately upon such
exercise, to be listed on any domestic national securities exchange or quotation
system upon which shares of Common Stock or other securities constituting
Warrant Shares are listed or quoted at the time of such exercise.
(xi) If the Warrant Shares issuable by reason of
exercise of this Warrant are convertible into or exchangeable for any other
stock or securities of the Company, the Company shall, at the Purchaser's option
and upon surrender of this Warrant by such
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Purchaser as provided above together with any notice, statement or payment
required to effect such conversion or exchange of Warrant Shares, deliver to
such Purchaser (or as otherwise specified by such Purchaser) a certificate or
certificates representing the stock or securities into which the Warrant Shares
issuable by reason of such conversion are convertible or exchangeable,
registered in such name or names and in such denomination or denominations as
such Purchaser has specified.
(xii) The Company shall not, and shall not permit its
subsidiaries to, directly or indirectly, by any action (including, without
limitation, reincorporation in a jurisdiction other than Delaware, amending its
Certificate of Incorporation or through any Organic Change, issuance or sale of
securities or any other voluntary action) avoid or seek to avoid the observance
or performance of any terms of this Warrant or impair or diminish its value, but
shall at all times in good faith assist in the carrying out of all such terms of
Warrant. Without limiting the generality of the foregoing, the Company shall (a)
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant and (b) not undertake any
reverse stock split, combination, reorganization or other reclassification of
its capital stock which would have the effect of making the Warrant exercisable
for less than one share of Common Stock.
(xiii) The Company has all requisite corporate power
and authority to enter into and perform its obligations under this Warrant and
to issue and deliver the Warrant to the Purchaser. The execution, delivery, and
performance by the Company of its obligations under this Warrant, including the
issuance and delivery of the Warrant to the Purchaser, have been duly authorized
by all necessary corporate action on the part of the Company. This Warrant has
been duly executed and delivered by the Company and is a legal, valid, and
binding obligation of the Company and is enforceable against the Company in
accordance with its terms. The execution and delivery of this Warrant by the
Company, the performance by the Company of its terms and the issuance and
delivery of the Warrant to the Registered Holder will not conflict with or
result in a violation of (i) the Certificate of Incorporation, as amended, or
the By-Laws of the Company, or (ii) any agreement, instrument, law, rule,
regulation, order, writ, judgment or decree to which the Company is a party or
is subject, except for such conflicts and violations which will not, in the
aggregate, have a material adverse effect on the business, operations, assets or
condition (financial or otherwise) of the and will not deprive the Registered
Holder of any material benefit under this Warrant. The issuance of such the
Warrant, and upon exercise, the Warrant Shares are not and will not be subject
to any preemptive or similar rights.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in substantially
the form set forth in Exhibit I hereto (the "Exercise Agreement"), except that
if the Warrant Shares are not to be issued in the name of the Registered Holder,
the Exercise Agreement shall also state the name of the Person to whom the
certificates for the Warrant Shares are to be issued, and if the number of
Warrant Shares to be issued does not include all of the Warrant Shares
purchasable hereunder, it shall also state the name of the Person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be issued.
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SECTION 2. Adjustment of Exercise Price and Number of Shares.
In order to prevent dilution of the rights granted under this Warrant, the
Initial Exercise Price shall be subject to adjustment from time to time as
provided in this Section 2 (as so adjusted, the "Exercise Price"), and the
number of Warrant Shares obtainable upon exercise of this Warrant shall be
subject to adjustment from time to time, each as provided in this Section 2.
2A. Adjustment of Exercise Price and Number of Shares upon
Issuance of Common Stock. If and whenever, on or after the date hereof, the
Company issues or sells, or in accordance with Section 2B is deemed to have
issued or sold, other than pursuant to a Permitted Issuance, as described in
Section 2C or pursuant to the Purchase Rights covered by Section 3, any shares
of Common Stock for a consideration per share less than the Fair Market Value
per share of the Common Stock determined as of the date of such issuance or
sale, then immediately upon such issuance or sale the Exercise Price shall be
reduced to equal the amount determined by multiplying the Exercise Price in
effect immediately prior to such issuance or sale by a fraction, the numerator
of which will be the sum of (1) the number of shares of Common Stock Deemed
Outstanding immediately prior to such issuance or sale multiplied by the Fair
Market Value per share of the Common Stock determined as of the date of such
issuance or sale, plus (2) the consideration, if any, received by the Company
upon such issuance or sale, and the denominator of which will be the product
derived by multiplying such Fair Market Value per share of the Common Stock by
the number of shares of Common Stock Deemed Outstanding immediately after such
issuance or sale. Upon each such adjustment of the Exercise Price hereunder, the
number of Warrant Shares acquirable upon exercise of this Warrant shall be
adjusted to equal the number of shares determined by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares acquirable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment. For the purposes of this Section 2, the calculation of the
number of shares of Common Stock Deemed Outstanding shall exclude the Warrant
Shares.
2B. Effect on Exercise Price of Certain Events. For purposes
of determining the adjusted Exercise Price under Section 2A, the following shall
be applicable:
(i) Issuance of Rights or Options. If the Company in
any manner grants any rights or options (other than the Purchase Rights covered
by Section 3 hereof or a Permitted Issuance) to subscribe for or to purchase
Common Stock or any stock or other securities convertible into or exchangeable
for Common Stock (including, without limitation, convertible common stock) (such
rights or options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible Securities")
and the price per share for which Common Stock is issuable upon the exercise of
such Options or upon conversion or exchange of such Convertible Securities is
less than the Fair Market Value per share of the Common Stock then in effect,
then the total number of shares of Common Stock then issuable upon the exercise
of such Options or upon conversion or exchange of the total amount of such
Convertible Securities then issuable upon the exercise of such Options shall be
deemed to be outstanding and to have been issued and sold by the Company for
such price per share. For purposes of this paragraph, the "price per share for
which Common Stock is issuable upon exercise of such Options or upon conversion
or exchange of such Convertible Securities" is determined by dividing (A) the
total amount, if any, received or receivable by the Company as
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consideration for the granting of such Options, plus the aggregate amount of
additional consideration then payable to the Company upon the exercise of all
such Options, plus in the case of such Options which relate to Convertible
Securities, the aggregate amount of additional consideration, if any, then
payable to the Company upon the issuance or sale of such Convertible Securities
and the conversion or exchange thereof, by (B) the total number of shares of
Common Stock then issuable upon exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options. No further adjustment of the Exercise Price shall be made upon the
actual issuance of such Common Stock or of such Convertible Securities upon the
exercise of such Options or upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the
Company in any manner issues or sells any Convertible Securities and the price
per share for which Common Stock is issuable upon such conversion or exchange is
less than the Fair Market Value per share of the Common Stock then in effect,
then the number of shares of Common Stock then issuable upon conversion or
exchange of such Convertible Securities shall be deemed to be outstanding and to
have been issued and sold by the Company for such price per share. For the
purposes of this paragraph, the "price per share for which Common Stock is
issuable upon such conversion or exchange" is determined by dividing (A) the
total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the aggregate amount of
additional consideration, if any, then payable to the Company upon the
conversion or exchange thereof, by (B) the total number of shares of Common
Stock then issuable upon the conversion or exchange of all such Convertible
Securities. No further adjustment of the Exercise Price shall be made upon the
actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and if any such issue or sale of such Convertible
Securities is made upon exercise of any Options for which adjustments of the
Exercise Price have been or are to be made pursuant to other provisions of this
Section 2B, no further adjustment of the Exercise Price shall be made by reason
of such issue or sale.
(iii) Change in Option Price or Conversion Rate. If
either the purchase price provided for in any Options, the additional
consideration, if any, payable upon the issue, conversion or exchange of any
Convertible Securities, or the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock shall change at any time, the
Exercise Price in effect at the time of such change shall be adjusted to the
Exercise Price which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed purchase
price, additional consideration or changed conversion rate, as the case may be,
at the time initially granted, issued or sold and the number Warrant Shares
shall be correspondingly readjusted.
(iv) Treatment of Expired Options and Unexercised
Convertible Securities. Upon the expiration of any Option or the termination of
any right to convert or exchange any Convertible Securities, in either case
without the exercise of such Option or right, the Exercise Price then in effect
and the number of Warrant Shares acquirable hereunder shall be adjusted to the
Exercise Price and the number of shares which would have been in effect at the
time of such expiration or termination had such Option or Convertible
Securities, to the extent outstanding immediately prior to such expiration or
termination, never been issued.
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(v) Calculation of Consideration Received. If any
Common Stock, Options or Convertible Securities are issued or sold or deemed to
have been issued or sold for cash, the consideration received therefor shall be
deemed to be the net amount received by the Company therefor. In case any Common
Stock, Options or Convertible Securities are issued or sold for a consideration
other than cash, the amount of the consideration other than cash received by the
Company shall be the fair value of such consideration, except where such
consideration consists of marketable securities, in which case the amount of
consideration received by the Company shall be the market price thereof as of
the date of receipt. In case any Common Stock, Options or Convertible Securities
are issued to the owners of the non-surviving entity in connection with any
merger or other business combination in which the Company is the surviving
entity, the amount of consideration therefor shall be deemed to be the fair
value of such portion of the net assets and business of the non-surviving entity
as is attributable to such Common Stock, Options or Convertible Securities, as
the case may be. The fair value of any consideration other than cash or
marketable securities shall be determined jointly by the Company and the
Required Holders. If such parties are unable to reach agreement within a
reasonable period of time, such fair value shall be determined by an appraiser
jointly selected by the Company and the Required Holders, whose determination
shall be final and binding on the Company and all Registered Holders of Warrants
(as defined in Section 4 below). The fees and expenses of such appraiser shall
be paid by the Company.
(vi) Integrated Transactions. In case any Option or
Convertible Security is issued in connection with the issue or sale of other
securities of the Company, together comprising one integrated transaction in
which no specific consideration is allocated to such Options or Convertible
Securities by the parties thereto, the Option or Convertible Security shall be
deemed to have been issued for no consideration; provided, if such other
securities are debt securities (such debt securities so issued are herein
referred to as the "Debt") of the Company or any of its subsidiaries, the Option
or Convertible Security shall be deemed to have been issued for consideration
equal to the excess, if any, of (a) the aggregate face amount (the "Estimated
Face Amount") of debt securities with terms identical to the terms of the Debt
(other than the increase to face value described in this proviso) which the
Company or such subsidiary would have had to issue had no Option or Convertible
Security been issued in connection therewith, given the prevailing market
conditions at the time of the issuance of the Debt, in order to receive the same
aggregate net proceeds as is actually received from the issuance of the Debt,
over (b) the aggregate face amount of the Debt. The Estimated Face Amount shall
be as mutually agreed between the Company and the Registered Holder or, if no
such mutual agreement is reached, as set forth in the written opinion, addressed
to the Registered Holder, of an investment bank of national recognition,
retained by the Company and reasonably acceptable to the Registered Holder;
provided, that if no such mutual agreement is reached or written opinion is
received, the Estimated Face Amount shall be deemed to be zero (0); and
provided, further, that the fees and expenses of such investment bank shall be
borne by the Company.
Example: If the Company issues $20 million aggregate
principal amount of 10% subordinated debentures
with a 10-year maturity (and receives aggregate
net proceeds of $20 million), and in connection
therewith issues warrants, and in accordance with
the provisions of Section 2B(vi), the Company and
the Registered Holder mutually
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agree or an investment bank determines that the
Estimated Face Amount of the subordinated
debentures (with terms otherwise identical to the
securities issued) would have been $21 million
(i.e., to yield aggregate net proceeds of $20
million to the Company), had the warrants not
been issued, then the warrants would be deemed to
have been issued for $1 million.
(vii) Treasury Shares. The number of shares of Common
Stock outstanding at any given time does not include shares owned or held by or
for the account of the Company or any subsidiary of the Company and the
disposition of any shares so owned or held shall be considered an issue or sale
of Common Stock.
(viii) Record Date. If the Company takes a record of
the holders of Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (B) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
2C. Subdivision or Combination of Common Stock. If the Company
at any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) the Common Stock into a greater number of shares or pays a dividend
or makes a distribution to holders of the Common Stock in the form of shares of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced and the number of Warrant Shares obtainable
upon exercise of this Warrant shall be proportionately increased. If the Company
at any time combines (by reverse stock split or otherwise) the Common Stock into
a smaller number of shares, the Exercise Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares obtainable upon exercise of this Warrant shall be proportionately
decreased.
2D. Organic Change. Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock (other than a transaction subject to Section 2C
hereof) is referred to herein as an "Organic Change". Prior to the consummation
of any Organic Change, the Company shall make appropriate provision to ensure
that each Registered Holder of Warrants shall thereafter have the right to
acquire and receive upon exercise thereof, in lieu of or addition to (as the
case may be) the Warrant Shares immediately theretofore acquirable and
receivable upon exercise of such Registered Holder's Warrants, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for the number of Warrant Shares immediately theretofore acquirable and
receivable upon exercise of such Registered Holder's Warrants had such Organic
Change not taken place. In any such case, the Company shall make appropriate
provision with respect to such Registered Holder's rights and interests to
insure that the provisions hereof (including this Section 2) shall thereafter be
applicable to the Warrants (including, in the case of
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any such Organic Change in which the successor entity or purchasing entity is
other than the Company, an immediate adjustment of the Exercise Price to the
value for the Common Stock reflected by the terms of such Organic Change and a
corresponding immediate adjustment in the number of Warrant Shares acquirable
and receivable upon exercise of the Warrants, if the value so reflected is less
than the Fair Market Value of the Common Stock in effect immediately prior to
such Organic Change). The Company shall not effect any such Organic Change
unless, prior to the consummation thereof, the successor entity (if other than
the Company) resulting from such Organic Change (including a purchaser of all or
substantially all the Company's assets) assumes by written instrument the
obligation to deliver to each Registered Holder of Warrants such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such Registered Holder may be entitled to acquire upon exercise of Warrants.
2E. Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 2 but not expressly provided for
by such provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity features
but excluding any Permitted Issuance), then the Company's Board of Directors
shall exercise their reasonable judgment consistent with the fundamental intent
of such provisions in making an appropriate adjustment in the Exercise Price and
the number of Warrant Shares obtainable upon exercise of this Warrant so as to
protect the rights of the Registered Holder of this Warrant.
2F. Notices.
(i) Promptly following any event requiring adjustment
of the Exercise Price, the Company shall give written notice thereof to the
Registered Holder, setting forth in reasonable detail and certifying the
calculation of such adjustment.
(ii) The Company shall give written notice to the
Registered Holder at least 30 days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any pro rata subscription offer to
holders of Common Stock, or (C) for determining rights to vote with respect to
any Organic Change, dissolution or liquidation.
(iii) The Company shall give written notice to the
Registered Holder at least 30 days prior to the date on which any Organic
Change, dissolution or liquidation shall take place.
(iv) Immediately upon the exercise of any of the
Warrants, the Company shall give written notice to the non-exercising Registered
Holders of the Warrants, setting forth in reasonable detail the exercising
Registered Holder and/or Purchaser, the number of Warrants being exercised, the
method of payment of such exercise and the date of such exercise.
SECTION 3. Purchase Rights. If at any time the Company grants,
issues or sells any options, convertible securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of the
Common Stock (the "Purchase Rights"), then the Company shall grant, issue or
offer to sell (as the case may be) to the Registered Holder, on the
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same term as to the record holders, the aggregate Purchase Rights which such
Registered Holder would have been granted, issued or sold if such Registered
Holder had held the maximum number of Warrant Shares then acquirable upon
complete exercise of this Warrant immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights or, if no such
record is taken, the date as of which the record holders of Common Stock are to
be determined for the grant, issue or sale of such Purchase Rights.
SECTION 4. Definitions. The following terms have the meanings
set forth below:
"Affiliate" has the meaning set forth in 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended.
"Common Stock" means the Common Stock, $.001 par value per
share, and any securities into which such Common Stock is hereafter converted or
exchanged.
"Common Stock Deemed Outstanding" means, at any given time,
the number of shares of all classes of the Company's common stock actually
outstanding at such time, plus the number of shares of the Company's common
stock deemed to be outstanding pursuant to Section 2B(i) or 2B(ii) hereof.
"Credit Agreement" means that certain Credit Agreement, dated
as of May 20, 2002, between the Company and Kimco Capital Corp., as such
agreement may be amended or modified from time to time.
"Diluted Basis" means with respect to the calculation of the
number of shares of Common Stock, (i) all shares of Common Stock outstanding at
the time of determination and (ii) all shares of Common Stock issuable upon the
exercise, conversion or exchange of any Option or Convertible Security.
"Fair Market Value" means (i) the average of the closing sales
prices of the Common Stock on all domestic national securities exchanges on
which the Common Stock is listed, or (ii) if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day or, (iii) if on any day the Common
Stock is not so listed, the sales price for the Common Stock as of 4:00 P.M.,
New York time, as reported on the NASDAQ National Market or, (iv) if the Common
Stock is not reported on the NASDAQ National Market, the average of the
representative bid and asked quotations for the Common Stock as of 4:00 P.M.,
New York time, as reported on the NASDAQ interdealer quotation system, or any
similar successor organization, in each such case averaged over a period of 21
trading days consisting of the day as of which "Fair Market Value" is being
determined and the 20 consecutive trading days prior to such day.
Notwithstanding the foregoing, if at any time of determination either (x) the
Common Stock is not registered pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended, and either listed on a national securities exchange or
authorized for quotation in the NASDAQ system, or (y) less than 25% of the
outstanding Common Stock is held by the public free of transfer restrictions
under the Securities Act of 1933, as amended, then Fair Market Value shall mean
the price that would be paid per share for the entire common equity interest in
the Company in an orderly sale
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transaction between a willing buyer and a willing seller, taking into account
the appropriate lack of liquidity of the Company's securities and any
appropriate discount for the minority position represented by the Warrants and
Warrant Shares, using valuation techniques then prevailing in the securities
industry and assuming full disclosure of all relevant information and a
reasonable period of time for effectuating such sale. Fair Market Value shall be
determined by the Company's Board of Directors in its good faith judgment. A
majority of the Required Holders shall have the right to require that an
independent investment banking firm mutually acceptable to the Company and the
Required Holders determine Fair Market Value, which firm shall submit to the
Company and the Warrant holders a written report setting forth such
determination. The expenses of such firm will be borne by the Company, and the
determination of such firm will be final and binding upon all parties.
"Investors' Agreement" means the Investors' Rights Agreement,
dated as of May 20, 2002, among the Company and the signatories thereto, as such
agreement may be amended or modified from time to time.
"Loan Participation Agreement" means the Loan Participation
Agreement, dated as of May 20, 2002, between Kimco Capital Corp. and Third
Avenue Trust, on behalf of the Third Avenue Real Estate Value Fund Series, as
such agreement may be amended or modified from time to time.
"Permitted Issuance" means any issuance by the Company of (a)
Common Stock on or prior to the date hereof; (b) Common Stock upon exercise of
the Warrants; (c) Common Stock or rights or options to purchase any such shares
issued to employees or consultants of the Company or any direct or indirect
subsidiary or pursuant to one or more stock bonus or similar plans adopted by
the Board of Directors of the Company in an aggregate amount not to exceed 15%
of the outstanding Common Stock on a Diluted Basis; (d) Common Stock pursuant to
an underwritten offering of Common Stock registered under the Securities Act of
1933, as amended; or (e) Common Stock or rights or options to purchase any such
shares issued under Company's plan of reorganization filed with the United
States Bankruptcy Court for the District of Maryland (Baltimore Division) or
under any agreement entered into in accordance with such plan.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or department or
agency thereof.
"Registered Holder" means the holder of this Warrant as
reflected in the records of the Company maintained pursuant to Section 12.
"Required Holders" means the holders of a majority of the
purchase rights represented by the Warrants as originally issued which remain
outstanding and unexercised.
"Warrants" means the Stock Purchase Warrants, dated as of
January 23, 2003, issued by the Company to Kimco Realty Services, Inc.
representing the right to purchase from the Company up to a total of 5,000,000
shares of Common Stock (as adjusted pursuant to the terms thereof) together with
any stock purchase warrants issued in substitution, exchange or replacement
therefor.
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"Warrant Shares" means shares of the Common Stock issuable
upon exercise of the Warrants; provided, that if the securities issuable upon
exercise of the Warrants are issued by an entity other than the Company or there
is a change in the class of securities so issuable, then the term "Warrant
Shares" shall mean shares of the security issuable upon exercise of the Warrants
if such security is issuable in shares, or shall mean the equivalent units in
which such security is issuable if such security is not issuable in shares.
SECTION 5. No Voting Rights; Limitations of Liability. This
Warrant shall not entitle the Registered Holder hereof to any voting rights or
other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Registered Holder to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Registered
Holder shall give rise to any liability of such Registered Holder for the
Exercise Price of Warrant Shares acquirable by exercise hereof or as a
stockholder of the Company.
SECTION 6. Restrictions. This Warrant and all rights hereunder
are transferable only to (i) Affiliates of each of Kimco Realty Services, Inc.
and Third Avenue Trust, on behalf of the Third Avenue Real Estate Value Fund
Series, and (ii) any Lender (as defined in the Credit Agreement) (including any
of the Lender's Affiliates), and any Participant (as defined in the Loan
Participation Agreement) (including any of the Participant's Affiliates) in
whole or in part, without charge to the Registered Holder, upon surrender of
this Warrant with a properly executed Assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
SECTION 7. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants shall represent such portion of such rights as is designated by the
Registered Holder at the time of such surrender. At the request of the
Registered Holder (pursuant to a transfer of Warrants or otherwise), this
Warrant may be exchanged for one or more Warrants to purchase Common Stock. The
date the Company initially issues this Warrant shall be deemed to be the date of
issuance hereof regardless of the number of times new certificates representing
the unexpired and unexercised rights formerly represented by this Warrant shall
be issued.
SECTION 8. Exchange. In the event that it becomes unlawful or,
in the reasonable judgment of any Registered Holder of this Warrant, unduly
burdensome by reason of a change in legal or regulatory considerations or the
interpretation thereof affecting the ability of financial institutions, real
estate investment trusts or their affiliates to hold equity securities, to hold
any or all of the Warrants or Warrant Shares, the Registered Holder of this
Warrant shall have the right to require the Company to use its reasonable best
efforts to permit all or part of such Registered Holder's Warrants or Warrant
Shares to be exchanged for nonvoting stock or similar interests that convey
equivalent economic benefits to such Warrants or Warrant Shares and include
equivalent anti-dilution protection. To the extent that the Company may lawfully
do so after the exercise of its reasonable best efforts, any such exchange shall
occur as soon as practicable (within 60 days) after written notice by the
Registered Holder of this Warrant to the Company (or such earlier date if
required to comply with applicable law).
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SECTION 9. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the Company
(provided, that if the Registered Holder is a financial institution or other
institutional investor its own agreement shall be satisfactory), or, in the case
of any such mutilation upon surrender of such certificate, the Company shall (at
its expense) execute and deliver in lieu of such certificate a new certificate
of like kind representing the same rights represented by such lost, stolen,
destroyed or mutilated certificate and dated the date of such lost, stolen,
destroyed or mutilated certificate.
SECTION 10. Notices. Except as otherwise expressly provided
herein, all notices and deliveries referred to in this Warrant shall be in
writing, shall be delivered personally, sent by registered or certified mail,
return receipt requested and postage prepaid or sent via nationally recognized
overnight courier or via facsimile, and shall be deemed to have been given when
so delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices and (ii) to a Registered Holder,
at such Registered Holder's address as it appears in the records of the Company
(unless otherwise indicated by any such Registered Holder).
SECTION 11. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the prior written consent of
the Registered Holder.
SECTION 12. Warrant Register. The Company shall maintain at
its principal executive offices books for the registration and the registration
of transfer of Warrants. The Company may deem and treat the Registered Holder as
the absolute owner hereof (notwithstanding any notation of ownership or other
writing hereon made by anyone) for all purposes and shall not be affected by any
notice to the contrary.
SECTION 13. Fractions of Shares. The Company may, but shall
not be required to, issue a fraction of a Warrant Share upon the exercise of
this Warrant in whole or in part. As to any fraction of a share which the
Company elects not to issue, the Company shall make a cash payment in respect of
such fraction in an amount equal to the same fraction of the Fair Market Value
of a Warrant Share on the date of such exercise.
SECTION 14. Registration Rights. The Registered Holder (and
assignees thereof) is entitled to the benefit of the registration rights in
respect of the Warrant Shares as are set forth in the Investors' Agreement.
SECTION 15. Company to Reaffirm Obligations. The Company will,
at the time of each exercise of this Warrant, upon the request of the Registered
holder hereof, acknowledge in writing its continuing obligation to afford to
such Registered Holder all rights (including, without limitation, any rights to
registration, pursuant to the Investors' Agreement, of the shares of Common
Stock issued upon such exercise) to which such Registered Holder shall continue
to
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be entitled after such exercise in accordance with the terms of this Warrant,
provided, that if the Registered Holder of this Warrant shall fail to make any
such request, such failure shall not affect the continuing obligation of the
Company to afford such rights to such Registered Holder.
SECTION 16. Descriptive Headings; Governing Law. The
descriptive headings of the several Sections and paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant. THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate seal and
to be dated as of the date hereof.
FRANK'S NURSERY & CRAFTS, INC.
By: /s/ Michael D. McBride
-----------------------------------
Name: Michael D. McBride
Title: Vice President Legal and Secretary
[CORPORATE SEAL]
Attest:
/s/ Alan Minker
- --------------------------
Treasurer
EXHIBIT I
EXERCISE AGREEMENT
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
FRANK'S NURSERY & CRAFTS, INC.
The undersigned holder hereby exercises the right to purchase
______________ of the shares of Common Stock ("Warrant Shares") of Frank's
Nursery & Crafts, Inc., a Delaware corporation (the "Company"), evidenced by the
attached Warrant (the "Warrant"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Warrant Exercise Price. The Holder intends that payment of
the Warrant Exercise Price shall be made as:
___ a "Cash Exercise" with respect to _____ Warrant
Shares; and/or
___ a "Loan Exercise" with respect to ____ Warrant
Shares.
2. Payment of Warrant Exercise Price. In the event that the holder has
elected a Cash Exercise, Loan Exercise or combination thereof with respect to
some or all of the Warrant Shares to be issued pursuant hereto, the holder
shall:
(a) pay the sum of $______________ to the Company in accordance with
the terms of the Warrant; and/or
(b) apply $_________________ of the principal amount of the Term Loan
(as defined in the Credit Agreement) in accordance with the terms of the Warrant
[and/or apply $_________ of the principal amount of that certain Revolving
Credit Loan (as defined in the Credit Agreement) made on _______ __, 200_].
3. Delivery of Warrant Shares. The Company shall deliver to the holder
______________ Warrant Shares in accordance with the terms of the Warrant.
Date: ___________________________, __, ________
_______________________________________________
Name of Registered Holder
By:____________________________________________
Name:
Title:
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, ________________________________ hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant (Certificate No. ______) with respect to the number of the
Warrant Shares covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
Dated: Signature ______________________________
______________________________
Witness ______________________________