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Exhibit 4.6
SERIES B WARRANT AGREEMENT
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This Amended and Restated Series B Warrant Agreement, dated as of June
1, 1995 (this "Agreement"), is made and entered into by and between Federated
Department Stores, Inc., a Delaware corporation (the "Company"), and The Bank of
New York, a New York banking corporation (the "Warrant Agent").
RECITALS
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A. The Company and CS First Boston Corporation, a Massachusetts
corporation formerly known as The First Boston Corporation ("FBC"), are parties
to a Series B Warrant Agreement, dated as of February 5, 1992 (the "Original
Agreement"), pursuant to which the Company issued and delivered 1,000,000
warrants (the "Warrants") to FBC in connection with a plan of reorganization of
Federated Department Stores, Inc., Allied Stores Corporation, and certain of
their subsidiaries (the "Plan") which was confirmed by the United States
Bankruptcy Court for the Southern District of Ohio, Western Division, on January
10, 1992.
B. Certain restrictions on the transferability of the Warrants set
forth in the Original Agreement lapsed as of February 5, 1995.
C. The Company desires to facilitate transfers of Warrants and other
dealings between the Company and holders of Warrants by, among other things,
appointing the Warrant Agent to act as agent for the Company and the holders of
Warrants in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the parties hereto hereby agree as follows:
1. BASIC TERMS AND FORM OF WARRANTS.
1.1. BASIC TERMS OF WARRANTS. From and after the date hereof, the
Warrants will be subject to and governed by the terms of this Agreement. As of
the date hereof, (a) each Warrant represents the right to purchase 1.047 shares
of Common Stock, par value $.01 per share, of the Company (the "Common Stock")
and (b) the purchase price per Warrant Share payable upon the exercise of a
Warrant (the "Warrant Price") is $33.43. The shares of Common Stock purchasable
upon exercise of the Warrants are hereinafter referred to as the "Warrant
Shares." The Warrant Price and the number and kind of Warrant Shares purchasable
upon exercise of the Warrants are subject to adjustment pursuant to the
provisions of Section 4.
1.2. FORM OF WARRANTS. Each Warrant, including without limitation any
Warrants that may be issued upon partial exercise, replacement, or transfer of
Warrants, will be evidenced by, and subject to the terms of, a Warrant
certificate (including the Form of Exercise Notice and Form of Assignment to be
printed on
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the reverse thereof, a "Warrant Certificate") in substantially the form of
Exhibit A, with such changes, marks of identification or designation, and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto.
1.3. COUNTERSIGNATURE OF WARRANTS. The Warrant Certificates will be
executed on behalf of the Company by the manual or facsimile signature of the
Chairman of the Board, President, or any Vice President of the Company, and
attested by the Secretary or any Assistant Secretary of the Company. The Warrant
Certificates will be countersigned by the Warrant Agent, either manually or by
facsimile signature, and will not be valid for any purpose unless so
countersigned. In case any officer of the Company who has signed any of the
Warrant Certificates ceases to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, and issued and delivered by the Company with the same force and effect as
though the person who signed such Warrant Certificates had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, is a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Agreement any such
person was not such an officer.
1.4 REGISTRATION OF WARRANTS. The Warrant Agent will keep or cause to
be kept, at the principal office of the Warrant Agent designated for such
purpose, books for registration and transfer of the Warrant Certificates issued
hereunder. Such books will show the names and addresses of the respective
holders of the Warrant Certificates, the number of Warrants evidenced on its
face by each of the Warrant Certificates, and the date of each of the Warrant
Certificates. The Company and the Warrant Agent will be entitled to treat the
registered holder of a Warrant (the "Holder") as the sole owner thereof for all
purposes and will not be bound to recognize any equitable or other claim or
interest in such Warrant on the part of any other person. Neither the Company
nor the Warrant Agent will be liable for any registration of transfer of any
Warrants that are registered or to be registered in the name of a fiduciary or
the nominee of a fiduciary.
2. TRANSFER AND EXCHANGE OF WARRANTS.
2.1. TRANSFER AND EXCHANGE. Any Warrant Certificate may be transferred,
split up, combined, or exchanged for another Warrant Certificate or Warrant
Certificates entitling the Holder thereof to purchase a like number of Warrant
Shares as the Warrant Certificate or Warrant Certificates surrendered then
entitled such Holder (or former Holder in the case of a transfer) to
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purchase. Any Holder desiring to transfer, split up, combine, or exchange any
such Warrant Certificate will make such request in writing delivered to the
Warrant Agent, and will surrender the Warrant Certificate or Warrant
Certificates to be transferred, split up, combined, or exchanged, with the Form
of Assignment duly executed by the Holder thereof, at the principal office of
the Warrant Agent designated for such purpose. Thereupon or as promptly as
practicable thereafter, the Company will prepare, execute, and deliver to the
Warrant Agent, and the Warrant Agent will countersign and deliver, a Warrant
Certificate or Warrant Certificates, as the case may be, as so requested.
Neither the Company nor the Warrant Agent will be required to issue or deliver
any Warrant Certificates in connection with any transfer, split up, combination,
or exchange of Warrants or Warrant Certificates unless and until the person or
persons requesting the issuance or delivery thereof has paid to the Warrant
Agent the amount of any tax or governmental charge that may be payable in
connection with such transfer, split up, combination or exchange or has
established to the satisfaction of the Warrant Agent that any tax or
governmental charge has been paid. Holders will not be required to pay any
service charges in connection with the transfer, split up, combination, or
exchange of Warrants.
2.2. LOST, STOLEN, AND MUTILATED WARRANT CERTIFICATES. Upon receipt by
the Company and the Warrant Agent of evidence reasonably satisfactory to them of
the loss, theft, destruction, or mutilation of a Warrant Certificate, and, in
case of loss, theft, or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the Warrant Agent of
all reasonable expenses incidental thereto, and upon surrender to the Warrant
Agent and cancellation of the Warrant Certificate if mutilated, the Company will
prepare, execute, and deliver a new Warrant Certificate of like tenor to the
Warrant Agent and the Warrant Agent will countersign and deliver such new
Warrant Certificate to the Holder in lieu of the Warrant Certificate so lost,
stolen, destroyed, or mutilated.
2.3. PAYMENT OF TAXES. The Company will pay all documentary or stamp
taxes, if any, attributable to the initial issuance of the Warrants and the
initial issuance of the Warrant Shares upon the exercise of Warrants; PROVIDED,
HOWEVER, that the Company's obligations in this regard will in all events be
conditioned upon the Holder cooperating with the Company and the Warrant Agent
in any reasonable arrangement designed to minimize or eliminate any such taxes.
Neither the Company nor the Warrant Agent will be required to pay any tax or
governmental charge that may be payable in connection with any transfer, split
up, combination, or exchange of Warrants or Warrant Certificates.
2.4. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATES. All Warrant
Certificates surrendered for the purpose of exercise, transfer, split up,
combination, or exchange will, if surrendered to the Company, be delivered to
the Warrant Agent for cancellation or in canceled form, or, if surrendered to
the
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Warrant Agent, will be canceled by it, and no Warrant Certificates will be
issued in lieu thereof except as expressly permitted by this Agreement. The
Company will deliver to the Warrant Agent for cancellation and retirement, and
the Warrant Agent will so cancel and retire, any other Warrant Certificate
purchased or acquired by the Company otherwise than upon the exercise thereof.
The Warrant Agent will deliver all canceled Warrant Certificates to the Company,
or will, at the written request of the Company, destroy such canceled Warrant
Certificates, and in such case will deliver a certificate of destruction thereof
to the Company.
3. EXERCISE OF WARRANTS.
3.1. EXERCISE OF WARRANTS. (a) Subject to the earlier expiration of
Warrants pursuant to Section 3.2, Warrants may be exercised by the Holder
thereof, in whole or in part, at any time and from time to time prior to 5:00
p.m., Cincinnati, Ohio time on February 15, 2000 (the "Expiration Date") by
delivering to the Warrant Agent, at its principal office designated for such
purpose, the following:
(i) the Warrant Certificate or Warrant Certificates
representing the Warrants to be exercised, with the Form of Exercise
Notice duly executed by the Holder thereof; and
(ii) cash, or a certified bank check payable to the order of
the Company, in an amount equal to the product of (A) the number of
Warrant Shares purchasable upon the exercise of the Warrants designated
for exercise in the Form of Exercise Notice and (B) the Warrant Price.
Following the Expiration Date, the Warrants will be null, void, and of no force
or effect, and no holder of a Warrant Certificate will have any right thereunder
or under this Agreement.
(b) As promptly as practicable after an exercise of Warrants in
accordance with Section 3.1(a), the Warrant Agent will (i) requisition from any
transfer agent for the Common Stock (or make available, if the Warrant Agent is
the transfer agent) certificates representing the number of Warrant Shares to be
purchased (and the Company hereby irrevocably authorizes and directs its
transfer agent to comply with all such requests), (ii) after receipt of such
certificates, cause the same to be delivered to or upon the order of the Holder
exercising such Warrants, registered in such name or names as may be designated
by such Holder, (iii) when appropriate, requisition from the Company the amount
of cash to be paid in lieu of the issuance of fractional Warrant Shares in
accordance with the provisions of Section 5, and (iv) when appropriate, after
receipt, deliver such cash to or upon the order of the Holder exercising such
Warrants.
(c) If the number of Warrants represented by a Warrant Certificate are
not exercised in full, the Company will prepare, execute, and deliver to the
Warrant Agent a new Warrant
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Certificate evidencing Warrants equivalent to such Warrants remaining
unexercised and the Warrant Agent will countersign and deliver such new Warrant
Certificate to or upon the order of the Holder exercising such Warrants,
registered in such name or names as may be designated by such Holder.
(d) The Company will take all such action as may be necessary to ensure
that all Warrant Shares delivered upon exercise of Warrants, at the time of
delivery of the certificates for such Warrant Shares, will be (subject to
payment of the Warrant Price) duly and validly authorized and issued, fully
paid, and nonassessable.
(e) In the event that the Company is obligated to pay cash in lieu of
fractional Warrant Shares pursuant to Section 5 in connection with any exercise
of Warrants, it will make all arrangements necessary so that such cash is
available for distribution by the Warrant Agent, if and when appropriate.
3.2. ACCELERATION OF THE EXPIRATION DATE. Notwithstanding anything to
the contrary contained in this Agreement, in the event that the Closing Price
(as defined in Section 4.1(e)) is equal to or greater than 160% of the Warrant
Price (as it may be adjusted pursuant to Section 4) for 45 consecutive Trading
Days (as hereinafter defined) ending after February 15, 1996, then, if the
Expiration Day has not previously occurred, the Expiration Date will be 5:00
p.m., Cincinnati, Ohio time, on the fifth Business Day (as hereinafter defined)
after the Company gives notice (the "Acceleration Notice") to the Holders, which
notice makes reference to this Agreement, specifies that the Expiration Date is
being accelerated by reason of the Closing Price so exceeding the Warrant Price
for such period, and sets forth the accelerated Expiration Date of the Warrants.
3.3. CERTAIN DEFINITIONS. For purposes of this Agreement, (a) the term
"Business Day" means any day other than a Saturday, Sunday, or a day on which
banking institutions in the state of Ohio are authorized or obligated by law or
executive order to close and (b) the term "Trading Day" means any day on which
shares of Common Stock are traded on the principal national securities exchange
on which the shares of Common Stock are listed or admitted to trading or, if
shares of Common Stock are not so listed or admitted to trading, in the
over-the-counter market.
4. ADJUSTMENTS OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The
Warrant Price and the number and kind of Warrant Shares purchasable upon
exercise of the Warrants will be subject to adjustment from time to time upon
the happening of certain events as provided in this Section 4.
4.1. MECHANICAL ADJUSTMENTS. The Warrant Price and the number and kind
of Warrant Shares purchasable upon exercise of a Warrant will be subject to
adjustment as follows:
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(a) Subject to Section 4.1(f), if the Company (i) pays a
dividend or otherwise distributes to holders of its Common Stock, as
such, shares of its capital stock (whether Common Stock or capital
stock of any other class), (ii) subdivides its outstanding shares of
Common Stock into a greater number of shares of Common Stock, (iii)
combines its outstanding shares of Common Stock into a smaller number
of shares of Common Stock, or (iv) issues any shares of its capital
stock in a reclassification of its outstanding shares of Common Stock
(including any such reclassification in connection with a
consolidation, merger, or other business combination transaction in
which the Company is the continuing or surviving corporation), then the
number and kind of Warrant Shares purchasable upon exercise of each
Warrant immediately prior thereto will be adjusted so that the Holder
of each Warrant will be entitled to receive the number and kind of
Warrant Shares or other securities of the Company that it would have
owned or it would have been entitled to receive after the happening of
any of the events described above, had such Warrant been exercised
immediately prior to the record date, in the case of a dividend or
distribution, or the effective date, in the case of a subdivision,
combination, or reclassification. An adjustment made pursuant to this
paragraph (a) will become effective immediately after the record date
in the case of a dividend or distribution and will become effective
immediately after the effective date in the case of a subdivision,
combination, or reclassification.
(b) Subject to Section 4.1(f), if the Company distributes to
holders of its Common Stock, as such, (i) evidences of indebtedness or
assets (excluding cash dividends or cash distributions payable out of
consolidated retained earnings) of the Company or any corporation or
other legal entity a majority of the voting equity securities or equity
interests of which are owned, directly or indirectly, by the Company (a
"Subsidiary"), (ii) shares of capital stock of any Subsidiary, (iii)
securities convertible or exchangeable for capital stock of the Company
(including Common Stock or capital stock of any other class) or any
Subsidiary, or (iv) any rights, options, or warrants (other than the
Warrants) to purchase any of the foregoing (excluding those described
in Section 4.1(c)), then, the number of Warrant Shares thereafter
purchasable upon exercise of each Warrant will be adjusted to the
number that results from multiplying the number of Warrant Shares
purchasable upon the exercise of each Warrant immediately prior to such
distribution by a fraction, the numerator of which will be the then
Current Market Price per share (as defined in Section 4.1(e)) of Common
Stock on the date of such distribution, and the denominator of which
will be the then Current Market Price per share of Common Stock less
the then fair value (as determined in good faith by the Board of
Directors of the Company, whose determination will be conclusive if
based on the financial advice of a reputable
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investment banking firm) of the portion of the evidences of
indebtedness, assets, securities, or rights, options, or warrants so
distributed applicable to one share of Common Stock. Such adjustment
will be made whenever any such distribution is made, and will become
effective immediately after the record date for the determination of
stockholders entitled to receive such distribution. Except as provided
in Section 4.1(i), no further adjustments of the number of Warrant
Shares will be made upon the actual issue of shares of Common Stock
upon conversion or exchange of such securities convertible or
exchangeable for shares of Common Stock or upon exercise of such
rights, warrants, or options for shares of Common Stock.
(c) Subject to Section 4.1(f), if the Company issues rights,
options, or warrants to holders of the outstanding shares of Common
Stock, as such, entitling the holders of such rights, options, or
warrants (for a period expiring within 60 calendar days after the
record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share that is lower on the record date
mentioned below than the Current Market Price per share of Common Stock
on such date, then the number of Warrant Shares thereafter purchasable
upon the exercise of each Warrant will be adjusted to the number that
results from multiplying the number of Warrant Shares purchasable upon
exercise of each Warrant immediately prior to such date by a fraction
(not to be less than one), the numerator of which will be the number of
shares of Common Stock outstanding on the date of issuance of such
rights, options, or warrants plus the number of additional shares of
Common Stock offered thereby for subscription or purchase and the
denominator of which will be the number of shares of Common Stock
outstanding on such date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at the Current Market Price per
share of Common Stock on such record date. Such adjustment will be made
whenever such rights, options, or warrants are issued, and will become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options, or warrants. In
case such subscription or purchase price may be paid in a consideration
part or all of which is in a form other than cash, the fair value of
such consideration will be as determined by the Board of Directors of
the Company, whose determination will be conclusive if based on the
financial advice of a reputable investment banking firm. Except as
provided in Section 4.1(i), no further adjustments of the number of
Warrant Shares will be made upon the actual issue of such Common Stock
upon exercise of such rights, options, or warrants.
(d) Subject to Section 4.1(f), if the Company issues shares of
Common Stock or securities convertible into or exchangeable for shares
of Common Stock (excluding (i)
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shares of Common Stock or convertible or exchangeable securities issued
in any of the transactions described in paragraphs (a), (b), or (c) of
this Section 4.1 and (ii) Warrant Shares issued upon exercise of the
Warrants) for a price per share of Common Stock in the case of an
issuance of shares of Common Stock, or for a price per share of Common
Stock initially deliverable upon conversion or exchange of such
securities, that is less than the Current Market Price per share of
Common Stock on the date the Company fixed the offering, conversion, or
exchange price of such additional shares of Common Stock, then the
number of Warrant Shares thereafter purchasable upon the exercise of
each Warrant will be adjusted to the number that results from
multiplying the number of Warrant Shares purchasable upon exercise of
each Warrant immediately prior to such date by a fraction (not to be
less than one), the numerator of which will be the number of shares of
Common Stock outstanding on such date plus the number of additional
shares of Common Stock so issued or issuable upon such conversion or
exchange, and the denominator of which will be the number of shares of
Common Stock outstanding on such date plus the number of shares of
Common Stock which the aggregate offering price received or receivable
by the Company for such additional shares of Common Stock would
purchase at the Current Market Price per share of Common Stock on such
date. Such adjustment will be made whenever such shares of Common Stock
or convertible securities are issued, and will become effective
immediately after the effective date of such event. In case such
purchase, conversion, or exchange price may be paid in a consideration
part or all of which is in a form other than cash, the fair value of
such consideration will be as determined by the Board of Directors of
the Company, whose determination will be conclusive if based on the
financial advice of a reputable investment banking firm. Except as
provided in 4.1(i), no further adjustment will be made upon the actual
issue of shares of Common Stock upon conversion or exchange of such
securities convertible into or exchangeable for shares of Common Stock.
(e) For purposes of this Agreement, the "Current Market Price"
per share of Common Stock on any date will be the average of the daily
closing prices for 20 consecutive Trading Days commencing 30 Trading
Days before the date of such computation. The closing price for each
day (the "Closing Price") will be the last reported sales price regular
way or, in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such day,
in each case on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if not so
listed or admitted to trading, the average of the closing bid and asked
prices of the shares of Common Stock in the over-the-counter market as
reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or any
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comparable system. In the absence of one or more such quotations, the
Board of Directors of the Company will determine the Current Market
Price in good faith on the basis of such quotations as it considers
appropriate.
(f) No adjustment in the number of Warrant Shares purchasable
upon the exercise of a Warrant will be required unless such adjustment
would require an increase or decrease in the number of Warrant Shares
purchasable upon the hypothetical exercise of a Warrant of at least 1%;
PROVIDED, HOWEVER, that any adjustments which by reason of this
paragraph (f) are not required to be made currently will be carried
forward and taken into account in any subsequent adjustment. All
calculations with respect to the number of Warrant Shares will be made
to the nearest one-thousandth of a share and all calculations with
respect to the Warrant Price will be to the nearest whole cent. No
adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant will be made under Section 4.1(b)-(d) if the
Company issues or distributes to each Holder of Warrants the shares,
rights, options, warrants, convertible or exchangeable securities,
evidences of indebtedness, assets, or other securities referred to in
those paragraphs that each Holder of Warrants would have been entitled
to receive had the Warrants been exercised prior to the happening of
such event on the record date with respect thereto. No adjustment in
the number of Warrant Shares purchasable upon the exercise of each
Warrant will be made on account of: (1) any issuance of shares of
Common Stock, or of options, rights, or warrants to purchase, or
securities exchangeable for or convertible into, shares of Common
Stock, pursuant to the Plan, (2) any issuance of shares of Common Stock
upon the conversion of the Convertible Notes, (3) any issuance of
shares of Common Stock, or of options, rights, or warrants to purchase,
or securities exchangeable for or convertible into, shares of Common
Stock, in accordance with the Equity Plan or any other plan adopted by
the Directors of the Company for the benefit of the employees or
Directors of the Company or any of its Subsidiaries, (4) any issuance
of shares of Common Stock in connection with a Company-sponsored plan
for reinvestment of dividends or interest, (5) any issuance of share
purchase rights pursuant to the New Federated Share Purchase Rights
Agreement, as from time to time amended, or any similar successor plan,
or (6) any issuance of shares of Common Stock or securities convertible
into or exchangeable for shares of Common Stock pursuant to an
underwritten public offering for a price per share of Common Stock in
the case of an issuance of shares of Common Stock, or for a price per
share of Common Stock initially deliverable upon conversion or exchange
of such securities, that is equal to or greater than 95% of the Closing
Price per share of Common Stock on the date the Company fixed the
offering, conversion, or exchange price of such additional shares of
Common Stock. No adjustment in the number of
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Warrant Shares will be made for a change in the par value of the shares
of Common Stock.
(g) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided, the Warrant
Price payable upon exercise of each Warrant will be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by
a fraction, the numerator of which will be the number of Warrant Shares
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and the denominator of which will be the number of Warrant
Shares purchasable immediately thereafter.
(h) For the purpose of this Section 4, the term "Common Stock"
means (i) the class of shares designated as the Common Stock of the
Company as of the date of this Agreement, (ii) all shares of any class
or classes (however designated) of the Company, now or hereafter
authorized, the holders of which have the right, without limitation as
to amount, either to all or to a part of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of
which are ordinarily entitled to vote generally in the election of
directors of the Company, or (iii) any other class of shares resulting
from successive changes or reclassifications of such shares consisting
solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to Section 4.1(a), the Holders of
Warrants become entitled to purchase any securities of the Company
other than Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Warrant Price for
such shares will be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in this Section 4.1, and the
provisions of Sections 4.2 and 4.3, with respect to the Warrant Shares.
(i) Upon the expiration of any rights, options, warrants, or
conversion or exchange privileges, if any thereof have not been
exercised, the Warrant Price and the number of Warrant Shares
purchasable upon the exercise of each Warrant will, upon such
expiration, be readjusted and will thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (i) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants, or conversion or exchange rights and (ii) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise, conversion, or
exchange plus the
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aggregate consideration, if any, actually received by the Company for
the issuance, sale, or grant of all such rights, options, warrants, or
conversion or exchange rights whether or not exercised; PROVIDED,
HOWEVER, that no such readjustment will have the effect of increasing
the Warrant Price or decreasing the number of Warrant Shares
purchasable upon the exercise of each Warrant by an amount in excess of
the amount of the adjustment initially made in respect of the issuance,
sale, or grant of such rights, options, warrants, or conversion or
exchange privileges.
4.2. NOTICE OF ADJUSTMENT. Whenever the Warrant Price or the kind or
number of securities purchasable upon exercise of the Warrants is adjusted
pursuant to any of the provisions of this Agreement, the Company will promptly
give notice to the Holders of such adjustment or adjustments, together with a
certificate of a firm of independent public accountants selected by the Company
(who may be the regular accountants employed by the Company) setting forth the
adjustments in the Warrant Price and in the number of Warrant Shares purchasable
upon exercise of each Warrant, and also setting forth a brief statement of the
facts requiring such adjustments and the computations upon which such
adjustments are based. Such certificate will be conclusive evidence of the
correctness of such adjustments.
4.3. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 4.1, no
adjustment or payment in respect of any dividends will be made at any time.
4.4. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC.
In case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale, transfer, or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, will execute an
agreement providing that each Holder will have the right thereafter upon payment
of the Warrant Price in effect immediately prior to such action to purchase upon
exercise of each Warrant the kind and amount of shares and other securities and
property that it would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale, transfer, or lease had such
Warrant been exercised immediately prior to such action; PROVIDED, HOWEVER, that
no adjustment in respect of dividends, interest, or other income on or from such
shares or other securities and property will be made during the term of a
Warrant or upon the exercise of a Warrant. Such agreement will provide for
adjustments that will be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. The provisions of this Section 4.4
will similarly apply to successive consolidations, mergers, sales, transfers, or
leases.
4.5. WARRANT CERTIFICATES. Whether or not any adjustments in the
Warrant Price or the number or kind of shares purchasable upon the exercise of
the Warrants has been made, Warrant
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Certificates theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrant Certificate
initially issued.
5. FRACTIONAL INTERESTS. Neither the Company nor the Warrant Agent will
be required to issue fractional Warrant Shares on the exercise of the Warrants.
If any fraction of a Warrant Share would, except for the provisions of this
Section 5, be issuable upon the exercise of the Warrants, the Company will pay
an amount in cash equal to the Current Market Price for one share of Common
Stock, as defined in Section 4.1(e), on the Trading Day immediately preceding
the date on which the Warrants are presented for exercise, multiplied by such
fraction of a Warrant Share.
6. WARRANT AGENT MATTERS.
6.1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the
Warrant Agent to act as agent for the Company and the Holders in accordance with
the terms and conditions hereof, and the Warrant Agent hereby accepts such
appointment and hereby certifies that it complies with the requirements of the
New York Stock Exchange governing transfer agents and registrars.
6.2. CONCERNING THE WARRANT AGENT. (a) The Company will pay to the
Warrant Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Warrant Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company will indemnify the Warrant Agent for, and hold it
harmless against, any loss, liability, suit, action, proceeding or expense,
incurred without negligence, bad faith or willful misconduct on the part of the
Warrant Agent, for anything done or omitted by the Warrant Agent in connection
with the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability arising therefrom,
directly or indirectly.
(b) The Warrant Agent will be protected and will incur no liability for
or in respect of any action taken, suffered, or omitted by it in connection with
its administration of this Agreement in reliance upon any Warrant Certificate or
certificate evidencing Common Stock or other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed, and, where
necessary, verified or acknowledged, by the proper person or persons.
6.3. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT. Any
corporation into which the Warrant Agent or any successor Warrant Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Warrant Agent or any successor Warrant
-12-
13
Agent is a party, or any corporation succeeding to the corporate trust business
of the Warrant Agent or any successor Warrant Agent, will be the successor to
the Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of 6.5 hereof.
6.4. DUTIES OF WARRANT AGENT. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the Holders, by their acceptance of
Warrant Certificates, will be bound:
(a) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Warrant Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Warrant Agent deems it necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the President,
or any Vice President of the Company and delivered to the Warrant Agent; and
such certificate will be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Warrant Agent will be liable hereunder only for its own
negligence, bad faith, or willful misconduct.
(d) The Warrant Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates or be required to verify the same, but all such statements and
recitals are and will be deemed to have been made by the Company only.
(e) The Warrant Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution and delivery hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate; nor will it be responsible for
any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor will it be responsible for any
adjustment required under the provisions of Section 4 hereof or responsible for
the manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
to the exercise of Warrants evidenced by Warrant Certificates after actual
notice of any such adjustment); nor will it by any
-13-
14
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of stock or other securities to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether
any shares of stock or other securities will, when issued, be validly authorized
and issued, fully paid, and nonassessable.
(f) The Company will perform, execute, acknowledge, and deliver or
cause to be performed, executed, acknowledged, and delivered all such further
and other acts, instruments, and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing by the Warrant Agent of the
provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, or any Vice President of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it will not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(h) The Warrant Agent and any stockholder, director, officer, or
employee of the Warrant Agent may buy, sell, or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein will preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Warrant Agent will not be answerable or
accountable for any act, default, neglect, or misconduct of any such attorneys
or agents or for any loss to the Company resulting from any such act, default,
neglect, or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof. The Warrant Agent will not be under any duty
or responsibility to insure compliance with any applicable federal or state
securities laws in connection with the issuance, transfer, or exchange of
Warrant Certificates.
6.5. CHANGE OF WARRANT AGENT. The Warrant Agent or any successor
Warrant Agent may resign and be discharged from its duties under this Agreement
upon 30 calendar days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock by registered or certified mail, and to the
Holders by first-class mail. The Company may remove the Warrant Agent or any
successor Warrant Agent upon 30 calendar days' notice in writing, mailed to the
Warrant Agent or successor Warrant Agent, as the case may be, and to each
transfer agent of the Common
-14-
15
Stock by registered or certified mail, and to the Holders by first-class mail.
If the Warrant Agent resigns or is removed or otherwise becomes incapable of
acting, the Company will appoint a successor to the Warrant Agent. If the
Company fails to make such appointment within a period of 30 calendar days after
giving notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
any Holder (who will, with such notice, submit his Warrant Certificate for
inspection by the Company), then any Holder may apply to any court of competent
jurisdiction for the appointment of a new Warrant Agent. Any successor Warrant
Agent, whether appointed by the Company or by such a court, will be a
corporation organized and doing business under the laws of the United States or
of the States of Ohio or New York (or of any other state of the United States so
long as such corporation is authorized to do business as a banking institution
in the States of Ohio or New York), in good standing, having a principal office
in the States of Ohio or New York, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Warrant Agent a combined capital and surplus of at least $50 million. After
appointment, the successor Warrant Agent will be vested with the same powers,
rights, duties, and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the predecessor Warrant Agent
will deliver and transfer to the successor Warrant Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act, or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company will file notice thereof in writing
with the predecessor Warrant Agent and each transfer agent of the Common Stock,
and mail a notice thereof in writing to the registered holders of the Warrant
Certificates. Failure to give any notice provided for in this Section 6.5,
however, or any defect therein, will not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
7. NO RIGHTS AS A STOCKHOLDER; NOTICES TO HOLDERS. Nothing contained in
this Agreement or in the Warrant Certificate will be construed as conferring
upon the Holders or their transferees the right to vote, or to receive
dividends, or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company;
PROVIDED, HOWEVER, that if, at any time prior to the Expiration Date and prior
to the exercise of all of the Warrants, any of the following events occur:
(a) The Company declares any dividend payable in any
securities upon its shares of Common Stock or makes any distribution
(other than a cash dividend payable out of consolidated retained
earnings) to the holders of its shares of Common Stock;
-15-
16
(b) The Company offers to the holders of its Common Stock any
shares of capital stock of the Company or any Subsidiary or securities
convertible into or exchangeable for shares of capital stock of the
Company or any Subsidiary or any option, right, or warrant to subscribe
for or purchase any thereof;
(c) The Company distributes to the holders of its Common Stock
evidences of indebtedness or assets (including any cash dividend which
would result in an adjustment under Section 4.1) of the Company or any
Subsidiary;
(d) Any reclassification of the Common Stock, any
consolidation of the Company with or merger of the Company into another
corporation, or any sale, transfer, or lease to another corporation of
all or substantially all the property of the Company; or
(e) A dissolution, liquidation, or winding up of the Company
is proposed;
then in any one or more of such events the Company will give notice in writing
of such event to the Holders, as provided in Section 11 hereof, such giving of
notice to be completed at least ten days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, or subscription rights, or
for the determination of shareholders entitled to vote on such proposed
reclassification, consolidation, merger, sale, transfer or lease, dissolution,
liquidation, or winding up; PROVIDED, HOWEVER, that no such notice will be
required in respect of any of the matters referred to in the penultimate
sentence of Section 4.1(f). Such notice will specify such record date or the
date of closing the transfer books, as the case may be, for such event. Failure
to mail or receive such notice or any defect therein or in the mailing thereof
will not affect the validity of any action taken in connection with such event.
8. AGREEMENT OF WARRANT HOLDERS. Every Holder by accepting a Warrant
Certificate consents and agrees with the Company and the Warrant Agent and with
every other Holder that:
(a) The Warrant Certificates are transferable only in accordance with
the terms of this Agreement and only on the registry books of the Warrant Agent
if surrendered at the principal office of the Warrant Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of transfer;
(b) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner thereof
and of the Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificate made by anyone other than the
Company or the
-16-
17
Warrant Agent) for all purposes whatsoever, and neither the Company nor the
Warrant Agent will be affected by any notice to the contrary;
(c) Such Holder expressly waives any right to receive any fractional
Warrants and any fractional securities upon exercise or exchange of a Warrant,
except as otherwise provided in Section 5 hereof; and
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Warrant Agent will have any liability to any Holder or other
person as a result of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or other order,
decree, or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory, or administrative agency or commission, or any
statute, rule, regulation, or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such
obligation; PROVIDED, HOWEVER, that the Company will use reasonable efforts to
have any such order, decree, or ruling lifted or otherwise overturned as soon as
possible.
9. RESERVATION OF COMMON STOCK. The Company will, for so long as
Warrants remain outstanding, reserve and keep available, solely for issuance and
delivery upon the exercise of the Warrants, a number of shares of Common Stock
(or, if applicable, other securities) sufficient to provide for the exercise of
all outstanding Warrants. The transfer agent for the Common Stock (or, if
applicable, other securities) will be irrevocably authorized and directed at all
times until the exercise or expiration of the Warrants to reserve such number of
authorized shares of Common Stock (or, if applicable, other securities) as
necessary for such purpose. The Company will keep copies of this Agreement on
file with the transfer agent and will supply the transfer agent with duly
executed stock certificates for such purpose.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Warrant Agent that:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to execute,
deliver, and perform its obligations hereunder and to consummate the
transactions contemplated hereby;
(b) The execution, delivery, and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of the Company;
-17-
18
(c) The execution, delivery, and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof will not
conflict with, violate, or constitute a breach of any material
contract, agreement, or instrument by which the Company is bound or any
judgment, order, decree, law, statute, rule, regulation, or other
judicial or governmental restriction to which the Company is subject;
and
(d) This Agreement constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally.
(e) The Warrants have been duly and validly issued and are
fully paid and nonassessable, and the Warrant Shares issued upon
exercise of the Warrants, when issued, paid for, and delivered as
provided in this Agreement, will be duly and validly issued, fully
paid, nonassessable, and free and clear of any and all liens and
encumbrances, other than the restrictions contemplated by this
Agreement.
11. NOTICES. All notices, requests, waivers, releases, consents, and
other communications required or permitted by this Agreement (collectively,
"Notices") must be in writing. Notices will be deemed sufficiently given for all
purposes when delivered in person, when dispatched by telegram or electronic
facsimile transmission, when sent by first-class mail, postage prepaid, or upon
confirmation of receipt when dispatched by a nationally recognized overnight
courier service to the appropriate party as follows: (a) if to a Holder, at the
address of such Holder as shown in the registry books maintained by the Warrant
Agent; (b) if to the Company, at 7 West Seventh Street, Cincinnati, Ohio 45202,
Telecopy No. (513) 579-7897 (marked for the attention of the Chief Financial
Officer and the General Counsel), or at such other address as the Company may
have furnished to the Holders and the Warrant Agent in writing; and (c) if to
the Warrant Agent, at 101 Barclay Street, New York, New York 10286, Telecopy No.
(212) 815-3201 (marked for the attention of William J. Skinner), or at such
other address as the Warrant Agent may have furnished to the Company and the
Holders in writing.
12. AMENDMENT AND WAIVER. Subject to the last sentence of this Section
12, (a) if the Company so directs, the Company and the Warrant Agent will
supplement or amend this Agreement without the approval of any Holders in order
to cure any ambiguity or correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein and (b)
the Company and the Warrant Agent may from time to time supplement or amend this
Agreement, with the consent of Holders of at least 50% of the Warrants then
outstanding, for any other for purpose. Notwithstanding anything in this
Agreement to the
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contrary, no supplement or amendment will be made which increases the Warrant
Price or decreases the period of time remaining during which the Warrants may be
exercised without the consent of all Holders.
13. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of each other party. In the absence of such prior
written consent, any purported assignment or delegation of any right or
obligation hereunder will be null and void.
14. RIGHTS OF THE PARTIES. Except as provided in Section 13, nothing
expressed or implied in this Agreement is intended or will be construed to
confer upon or give any person or entity other than the parties hereto and the
Holders any rights or remedies under or by reason of this Agreement or any
transaction contemplated hereby.
15. TITLES AND HEADINGS. Titles and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
16. CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS.
(a) Unless the context otherwise requires, (i) all references
to Sections or Exhibits are to Sections or Exhibits of or to this
Agreement, (ii) each term defined in this Agreement has the meaning
assigned to it, (iii) "or" is disjunctive but not necessarily
exclusive, and (iv) words in the singular include the plural and VICE
VERSA. All references to "$" or dollar amounts will be to lawful
currency of the United States of America.
(b) No provision of this Agreement will be interpreted in
favor of, or against, any party hereto by reason of the extent to which
such party or its counsel participated in the drafting thereof or by
reason of the extent to which any such provision is inconsistent with
any prior draft hereof or thereof.
17. ENTIRE AGREEMENT. This Agreement, together with its Exhibits,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof, and there are no agreements among the parties hereto with
respect thereto except as expressly set forth herein.
18. SEVERABILITY. In case any provision contained in this Agreement is
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.
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20
19. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws thereof.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed will be deemed to be an original; such
counterparts will together constitute but one agreement.
21. REFERENCES TO THE PLAN. Terms used herein with initial capital
letters that are not otherwise defined are used herein as defined in the Plan.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written.
FEDERATED DEPARTMENT STORES, INC.
By: /s/ John R. Sims
---------------------------------------
Name: John R. Sims
Title: Vice President and
Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Robert Dietz
---------------------------------------
Name: Robert Dietz
Title: Vice President
By executing this Agreement below, FBC consents to the execution and
delivery of this Agreement by the Company and the Warrant Agent and acknowledges
that this Agreement supersedes the Original Agreement and that the Warrants will
be subject to and governed by the terms of this Agreement from and after the
date hereof until such time as this Agreement may be amended in accordance with
its terms.
CS FIRST BOSTON CORPORATION
By: /s/ Agnes F. Reicke
---------------------------------------
Name: Agnes F. Reicke
Title: Director & Secretary
-20-
21
EXHIBIT A
---------
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE WARRANT AGREEMENT (AS HEREINAFTER DEFINED), A COPY
OF WHICH WILL BE MADE AVAILABLE BY THE ISSUER UPON REQUEST. THE TRANSFER OR
EXCHANGE OF THESE WARRANTS MUST BE REGISTERED IN ACCORDANCE WITH THE WARRANT
AGREEMENT.
NO. WARRANTS
-------- -------------
VOID AFTER 5:00 P.M. CINCINNATI TIME
ON FEBRUARY 15, 2000 OR EARLIER
AS PROVIDED IN THE WARRANT AGREEMENT
Federated Department Stores, Inc. Series B Warrant Certificate
THIS CERTIFIES THAT for value received, ___________, or its
registered assigns (the "Holder"), is the owner of the number of Warrants set
forth above that initially entitle it to purchase from Federated Department
Stores, Inc., a Delaware corporation (the "Company"), at any time and from time
to time prior to 5:00 p.m. Cincinnati time on February 15, 2000, or such earlier
date as described in the Warrant Agreement (the "Expiration Date"), 1.047 fully
paid and nonassessable shares of the Common Stock, par value $.01 per share, of
the Company (the "Common Stock") at an initial purchase price of $33.43 per
share (the "Warrant Price"). The shares of Common Stock purchasable upon
exercise of the Warrants are hereinafter referred to as the "Warrant Shares."
Subject to the terms and conditions of the Warrant Agreement, the Warrants may
be exercised by surrendering to the Warrant Agent (as hereinafter defined) this
Warrant Certificate, with the Form of Exercise Notice on the reverse side hereof
duly executed, together with cash, in lawful money of the United States of
America, or a certified bank check payable to the order of the Company, in an
amount equal to the product of (a) the number of Warrant Shares purchasable upon
the exercise of the Warrants designated for exercise in the Form of Exercise
Notice and (b) the Warrant Price.
The number of Warrant Shares which may be purchased upon
exercise of the Warrants evidenced by this Warrant Certificate are the number as
of June 1, 1995, based on the shares of Common Stock of the Company as
constituted at such date. As provided in the Warrant Agreement, the Warrant
Price and the number and kind of Warrant Shares purchasable upon exercise of the
Warrants are subject to adjustment.
A-1
22
This Warrant Certificate and the Warrants it represents are
subject to, and entitled to the benefits of, all of the terms, provisions, and
conditions of the Amended and Restated Series B Warrant Agreement, dated as of
June 1, 1995 (the "Warrant Agreement"), by and between the Company and The Bank
of New York, a New York banking corporation (the "Warrant Agent"), which Warrant
Agreement is hereby incorporated herein by reference and made a part hereof and
to which Warrant Agreement reference is hereby made for a full description of
the rights, limitation of rights, obligations, duties, and immunities hereunder
of the Company and the Holder. A copy of the Warrant Agreement will be made
available by the Company upon request.
Subject to the provisions set forth in the Warrant Agreement
or in this Certificate, this Warrant Certificate, with or without other Warrant
Certificates, may be transferred, split up, combined, or exchanged for another
Warrant Certificate or Warrant Certificates, entitling the Holder to purchase a
like number of Warrant Shares as the Warrant Certificate or Warrant Certificates
surrendered entitled such Holder (or former Holder in the case of a transfer) to
purchase, upon presentation and surrender hereof at the principal office of the
Warrant Agent designated for such purpose, with the Form of Assignment (if
appropriate) and the related Certificate duly executed.
The Company will not be required to issue fractional Warrant
Shares upon the exercise of any Warrants evidenced by this Warrant Certificate,
but in lieu thereof a cash payment will be made, as provided in the Warrant
Agreement.
Nothing contained in the Warrant Agreement or in this Warrant
Certificate will be construed as conferring upon the holder of this Warrant
Certificate the right to vote, or to receive dividends, or to consent or (except
as provided in the Warrant Agreement) to receive notice in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
This Warrant Certificate will not be valid or obligatory for
any purpose until it has been countersigned by the Warrant Agent.
A-2
23
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be executed by its corporate officers duly authorized.
Attest: FEDERATED DEPARTMENT STORES, INC.
By:
- --------------------------- ------------------------------------
[Name, title] [Name, title]
Dated:
Countersigned:
THE BANK OF NEW YORK
By
------------------------
[Authorized Signature]
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Form of Reverse Side of Warrant Certificate
FORM OF ASSIGNMENT
------------------
(To be executed if the Holder desires to transfer Warrants)
FOR VALUE RECEIVED, __________________________________________
hereby sells, assigns, and transfers unto ______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Warrant Certificate, together with all right, title, and interest therein,
and does hereby irrevocably constitute and appoint ___________________ Attorney,
to transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: , 19
--------------------- ---
------------------------------
Signature
Signature Guaranteed:
A-4
25
FORM OF EXERCISE NOTICE
-----------------------
(To be executed if the Holder desires to exercise Warrants)
TO FEDERATED DEPARTMENT STORES, INC.:
The undersigned hereby irrevocably elects to exercise
_____________ Warrants evidenced by this Warrant Certificate to purchase the
Warrant Shares issuable upon the exercise of such Warrants and requests that
certificates for such Warrant Shares be issued in the name of:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert social security or other identifying number:
----------------------
If such number of Warrants is not all the Warrants evidenced by this Warrant
Certificate, a new Warrant Certificate for the balance remaining of such
Warrants will be registered in the name of and delivered to:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Please insert social security or other identifying number:
----------------------
Dated: , 19
------------------------- ----
-------------------------
Signature
Signature Guaranteed:
A-5
26
NOTICE
------
Signatures on the foregoing Form of Assignment and Form of
Exercise Notice and in the related Warrant Certificates must correspond to the
name as written upon the face of this Warrant Certificate in every particular,
without alternation or enlargement or any change whatsoever.
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-6