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Exhibit 4(d)
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WARRANT AGREEMENT
by and between
BEERMAN-PEAL HOLDINGS, INC.
and
THE ELDER-BEERMAN STORES CORP.
Dated as of December 30, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE 1. GRANT OF WARRANT...........................................1
1.1 Grant......................................................1
1.2 Shares To Be Issued; Reservation of Shares.................1
ARTICLE 2. ADJUSTMENTS TO WARRANT RIGHTS..............................1
2.1 Stock Combinations.........................................1
2.2 Reorganizations............................................2
2.3 Adjustment Upon Changes in Capitalization..................2
2.4 Notice.....................................................3
2.5 Fractional Interests.......................................3
2.6 Effect of Alternate Securities.............................4
2.7 Successive Application.....................................4
2.8 Minimum Exercise Price for Adjustment......................4
ARTICLE 3. EXERCISE...................................................4
3.1 Exercise of Warrant........................................4
3.2 Issuance of Warrant Shares.................................4
ARTICLE 4. RIGHTS OF HOLDER...........................................4
ARTICLE 5. MISCELLANEOUS..............................................5
5.1 Amendments.................................................5
5.2 Notices....................................................5
5.3 Waiver By Consent..........................................6
5.4 No Implied Waiver; Rights Are Cumulative...................6
5.5 Governing Law..............................................6
5.6 Severability...............................................6
5.7 Captions...................................................6
5.8 Entire Agreement...........................................6
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WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Warrant") is being entered into
this 30th day of December, 1997, by and between The Elder-Beerman Stores Corp.,
an Ohio corporation (together with its successors and permitted assigns, the
"Company") and Beerman-Peal Holdings, Inc., an Ohio corporation (together with
his successors and permitted assigns, the "Holder").
RECITALS
WHEREAS, on October 17, 1995, each of the Company and six of
its subsidiaries filed voluntary petitions for relief under Chapter 11 of the
United States Bankruptcy Code with the United States Bankruptcy Court for the
Southern District of Ohio, Western Division (the "Bankruptcy Court"); and
WHEREAS, this Warrant for the New Series A Warrants is
contemplated by the Joint Plan of Reorganization of the Company and Its
Subsidiaries confirmed by an order entered by the Bankruptcy Court on December
16, 1997 (the "Plan").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE 1. GRANT OF WARRANT
1.1 GRANT. The Company hereby grants to Holder this Warrant,
which, subject to the terms and conditions of the Plan, is exercisable as
provided herein, in whole or in part, at any time and from time to time during
the period commencing on the date hereof (the "Effective Date") and ending on
the fifth anniversary of the Effective Date at 11:59 p.m., local time in Dayton,
Ohio (the "Exercise Period"), to purchase an aggregate of up to 249,809 of the
outstanding shares of common stock (the "Warrant Shares"), at an exercise price
of $12.80 per share (as it may be hereinafter adjusted, the "Exercise Price").
1.2 SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company
covenants and agrees that all Warrant Shares will, upon issuance, be duly
authorized, validly issued and outstanding, fully paid and non-assessable, and
free from all taxes, liens and charges with respect to the issuance thereof,
except as otherwise provided in the Plan. The Company further covenants and
agrees that it will from time to time take all actions required to assure that
the par value per share of the New Common Stock is at all times equal to or less
than the effective Exercise Price. The Company further covenants and agrees
that, during the Exercise Period, the Company will at all times have authorized
and reserved sufficient shares of New Common Stock to provide for the exercise
of this Warrant in full.
ARTICLE 2. ADJUSTMENTS TO WARRANT RIGHTS
2.1 STOCK COMBINATIONS. If the Company combines all of the
outstanding New Common Stock proportionately into a smaller number of shares,
the Exercise Price per Warrant Share
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hereunder in effect immediately prior to such combination shall be
proportionately increased and the number of Warrant Shares issuable to the
Holder upon exercise of this Warrant shall be proportionately decreased, as of
the effective date of such combination, as follows: (a) the number of Warrant
Shares purchasable upon the exercise of the Warrant immediately prior to the
effective date of such combination, shall be adjusted so that the Holder of the
Warrant exercised after that date shall be entitled to receive the number and
kind of Warrant Shares which the Holder of the Warrant would have owned and been
entitled to receive as a result of the combination had the Warrants been
exercised immediately prior to that date, and (b) the Exercise Price in effect
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which is the aggregate number of
shares of New Common Stock purchasable upon exercise of the Warrants immediately
prior to such adjustment, and the denominator of which is the aggregate number
of shares of New Common Stock purchasable upon exercise of the Warrants
immediately thereafter.
2.2 REORGANIZATIONS. If any of the following transactions
(each, a "Special Transaction") occurs after the Effective Date; (i) a capital
reorganization or reclassification of the capital stock of the Company, (ii) a
consolidation or merger of the Company with and into another entity, or (iii) a
sale or conveyance of all or substantially all of the Company's assets, then, as
a condition of any such Special Transaction, lawful and adequate provision shall
be made whereby the Holder shall thereafter have the right to purchase and
receive, at any time after the consummation of such Special Transaction until
the expiration of the Exercise Period, upon the basis and upon the terms and
conditions specified herein, and in lieu of the Warrant Shares immediately
theretofore issuable upon exercise of this Warrant for the aggregate Exercise
Price in effect immediately prior to such consummation, such shares of stock,
other securities, cash or other assets as may be issued or payable in and
pursuant to the terms of such Special Transaction with respect to or in exchange
for a number of outstanding shares of New Common Stock equal to the number of
Warrant Shares immediately theretofore issuable upon exercise of this Warrant
had such Special Transaction not taken place (pro rated in the case of any
partial exercises). In connection with any Special Transaction, appropriate
provision shall be made with respect to the rights and interests of the Holder
to the end that the provisions of this Warrant (including without limitation
provisions for adjustment of the Exercise Price and the number of Warrant Shares
issuable upon the exercise of the Warrant), shall thereafter be applicable, as
nearly as may be, to any shares of stock, other securities, cash or other assets
thereafter deliverable upon the exercise of this Warrant. The Company shall not
effect any Special Transaction unless prior to or simultaneously with the
closing the successor entity (if other than the Company), if any, resulting from
such consolidation or merger or the entity acquiring such assets shall assume by
a written instrument executed and mailed by certified mail or delivered to the
Holder at the address of the Holder appearing on the books of the Company, the
obligation of the Company or such successor corporation to deliver to such
Holder such shares of stock, securities, cash or other assets as, in accordance
with the foregoing provisions, such Holder has rights to purchase.
2.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of
any change in the New Common Stock by reason of stock dividends, stock splits,
recapitalizations or reclassifications, the type and number of Warrant Shares
issuable upon exercise of this Warrant, and the Exercise Price, as the case may
be, shall be adjusted as follows: (a) the number of Warrant Shares purchasable
upon the exercise of the Warrant immediately prior to the record date for such
dividend or distribution, or the effective date of such recapitalization or
reclassification shall be adjusted so that
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the holder of the Warrant exercised after that date shall be entitled to receive
the number and kind of Warrant Shares which the holder of the Warrant would have
owned and been entitled to receive as a result of the dividend, distribution,
recapitalization or reclassification had the Warrants been exercised immediately
prior to that date, and (b) the Exercise Price in effect immediately prior to
such adjustment shall be adjusted by multiplying such Exercise Price by a
fraction, the numerator of which is the aggregate number of shares of New Common
Stock purchasable upon exercise of the Warrants immediately prior to such
adjustment, and the denominator of which is the aggregate number of shares of
New Common Stock purchasable upon exercise of the Warrants immediately
thereafter. No such adjustment shall be made on account of any dividend payable
other than in securities of the Company.
2.4 NOTICE. Whenever this Warrant or the number of Warrant
Shares issuable hereunder is to be adjusted as provided herein or a dividend or
distribution (in cash, stock or otherwise and including, without limitation, any
liquidating distributions) is to be declared by the Company, or a definitive
agreement with respect to a Special Transaction has been entered into, the
Company shall forthwith cause to be sent to the Holder at the last address of
the Holder shown on the books of the Company, by first-class mail, postage
prepaid, at least ten (10) days prior to the record date specified in (A) below
or at least twenty (20) days before the date specified in (B) below, a notice
stating in reasonable detail the relevant facts and any resulting adjustments
and the calculation thereof, if applicable, and stating (if applicable):
(A) the date to be used to determine (i) which
holders of New Common Stock will be entitled to receive notice of such dividend,
distribution, subdivision or combination (the "Record Date"), and (ii) the date
as of which such dividend, distribution, subdivision or combination shall be
made; or, if a record is not to be taken, the date as of which the holders of
New Common Stock of record to be entitled to such dividend, distribution,
subdivision or combination are to be determined (provided, that in the event the
Company institutes a policy of declaring cash dividends on a periodic basis, the
Company need only provide the relevant information called for in this clause (A)
with respect to the first cash dividend payment to be made pursuant to such
policy and thereafter provide only notice of any changes in the amount or the
frequency of any subsequent dividend payments), or
(B) the date on which a Special Transaction is
expected to become effective, and the date as of which it is expected that
holders of New Common Stock of record shall be entitled to exchange their shares
of New Common Stock for securities or other property deliverable upon
consummation of the Special Transaction (the "Exchange Date").
2.5 FRACTIONAL INTERESTS. The Company shall not be required to
issue fractions of shares of New Common Stock on the exercise of this Warrant.
If any fraction of a share of New Common Stock would, except for the provisions
of this Section 2.5, be issuable upon the exercise of this Warrant, the Company
shall, upon such issuance, purchase such fraction for an amount in cash equal to
the current value of such fraction, computed on the basis of the last reported
close price of the New Common Stock on the National Association of Securities
Dealers Automated Quotation System or the principal market on which the New
Common Stock is then traded on the last business day prior to the date of
exercise upon which such a sale shall have been effected, or, if the New
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Common Stock is not publicly traded, as the Board of Directors of the Company
may in good faith determine.
2.6 EFFECT OF ALTERNATE SECURITIES. If at any time, as a
result of an adjustment made pursuant to this Section 2, the Holder of the
Warrants shall thereafter become entitled to receive any securities of the
Company other than shares of New Common Stock, then the number of such other
securities receivable upon exercise of an Warrant shall be subject to adjustment
from time to time on terms as nearly equivalent as practicable to the provisions
with respect to shares of New Common Stock contained in this Section 2.
2.7 SUCCESSIVE APPLICATION. The provisions of this Section 2
shall similarly apply to successive events covered by this Section.
2.8 MINIMUM EXERCISE PRICE FOR ADJUSTMENT. No adjustment in
the Exercise Price in accordance with this Article 2 need be made if such
adjustment would amount to a change in such Exercise Price of less than $.001;
provided, however, that the amount by which any adjustment is not made by reason
of the provisions of this Section 2.8 shall be carried forward and taken into
account at the time of any subsequent adjustment.
ARTICLE 3. EXERCISE
3.1 EXERCISE OF WARRANT. (a) The Holder may exercise this
Warrant by (i) surrendering this Warrant, with the form of exercise notice
attached hereto as EXHIBIT "A" duly executed by Holder, and (ii) making payment
to the Company of the aggregate Exercise Price for the applicable Warrant Shares
in cash, by certified check or bank check or by wire transfer to an account
designated by the Company. Upon any partial exercise of this Warrant, the
Company, at its expense, shall forthwith issue to the Holder for its surrendered
warrant a replacement Warrant identical in all respects to this Warrant, except
that the number of Warrant Shares shall be reduced accordingly.
(b) RECORD DATE FOR OWNERSHIP OF WARRANT SHARES. Each person
in whose name any Warrant Share certificate is issued upon exercise of the
Warrant shall for all purposes been deemed to have become the holder of record
of the Warrant Shares for which such Warrant was exercised, and such Warrant
Share certificate shall be dated the date upon which the Warrant exercise notice
was duly surrendered and payment of the Exercise Price was tendered to the
Company.
3.2 ISSUANCE OF WARRANT SHARES. The Warrant Shares purchased
shall be issued to the Holder exercising this Warrant as of the close of
business on the date on which all actions and payments required to be taken or
made by Holder, pursuant to Section 3.1, shall have been so taken or made.
Certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time, not exceeding ten (10) days after this Warrant
is surrendered.
ARTICLE 4. RIGHTS OF HOLDER
Holder shall not, solely by virtue of this Warrant and prior
to the issuance of the Warrant Shares upon due exercise thereof, be entitled to
any rights of a shareholder in the Company.
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ARTICLE 5. MISCELLANEOUS
5.1 AMENDMENTS. The parties may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Warrant or changing in any manner the rights of
either of the parties hereunder. No amendment, supplement or modification shall
be binding on either party unless made in writing and signed by a duly
authorized representative of each party.
5.2 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or confirmed facsimile transmission, which transmission is confirmed:
(a) if to the Company to:
The Elder-Beerman Stores Corp.
3155 El-Bee Road
Dayton, Ohio 45439
Attention: John A. Muskovich
Telecopy: (937) 296-4625
with a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
Attention: Richard M. Cieri, Esq.
Telecopy: (216) 579-0212
(b) if to Holder to:
Beerman-Peal Holdings, Inc.
11 W. Monument Building
8th Floor
Dayton, Ohio 45402
Attention: William S. Weprin
Telecopy: (937) 222-5472
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with a copy to:
McDonald, Hopkins, Burke & Haber Co., L.P.A.
2100 Bank One Center
600 Superior Avenue, East
Cleveland, Ohio 44114-2653
Attention: Shawn M. Riley
Telecopy: (216) 348-5474
(c) or, in each case, at such other address or to such other
person as may be specified in writing to the other party.
5.3 WAIVER BY CONSENT. The Holder may execute and deliver to
the Company a written instrument waiving, on such terms and conditions as the
Holder may specify in such instrument, any of the requirements of this Warrant.
5.4 NO IMPLIED WAIVER; RIGHTS ARE CUMULATIVE. The failure to
exercise or the delay in exercising by either party of any right, remedy, power
or privilege under this Warrant, shall not operate as a waiver thereof. The
single or partial exercise of any right, remedy, power or privilege under this
Warrant shall not preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
5.5 GOVERNING LAW. This Warrant and rights and obligations of
the parties hereunder shall be governed by, construed and interpreted in
accordance with the laws of the State of Ohio applicable to agreements executed
by residents of that state, and fully to be performed, in that state.
5.6 SEVERABILITY. If any provision of this Warrant is found to
be unenforceable for any reason whatsoever, such provision shall be deemed null
and void to the extent of such unenforceability but shall be deemed separable
from and shall not invalidate any other provision of this Warrant.
5.7 CAPTIONS. Captions to the various paragraphs of this
Agreement are provided for convenience only and shall not be used to construe
the provisions of this Warrant.
5.8 ENTIRE AGREEMENT. This Warrant and the Plan constitute the
entire understanding of the parties with respect to the subject matter of the
Warrant and supersedes all prior discussions, agreements and representations,
whether oral or written, concerning the subject matter hereof and whether or not
executed by Holder and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Warrant to be duly executed and delivered by the proper and duly authorized
officers as of the day and year first above written.
THE ELDER-BEERMAN STORES CORP.
By: /s/ John A. Muskovich
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John A. Muskovich
President, Chief Operating Officer
and Chief Financial Officer
BEERMAN-PEAL HOLDINGS, INC.
By: /s/ William S. Weprin
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William S. Weprin
President
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EXHIBIT "A"
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[To be signed only upon exercise of Warrant]
To The Elder-Beerman Stores Corp.:
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _______________ shares of the common stock,
without par value, of The Elder-Beerman Stores Corp. and herewith makes payment
of $_______________ therefor, and requests that the certificates for such shares
be issued in the name of, and be delivered to, _______________ whose address is
_________________________________________________.
Dated:_________________ ---------------------------------------------------
(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant)
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Address