EXHIBIT 2.8
FORM OF TAX NOTE
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FOR FEDERAL PRIORITY TAX CLAIMS
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THIS NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THIS NOTE MAY BE OFFERED OR SOLD
ONLY IF REGISTERED UNDER SAID ACT AND SUCH LAWS OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
_____________________________
$________ ________,199_
FOR VALUE RECEIVED, the undersigned, Bradlees Stores, Inc., a
Massachusetts corporation (the "Company"), hereby covenants and promises to pay
__________ (the "Holder"), the principal sum of ________ Dollars ($________) on
__________, ____ (the "Maturity Date") in equal quarterly installments, together
with interest (computed on the basis of a 360-day year of twelve 30-day months)
on the unpaid principal amount accruing after the earlier of (a) Effective Date
and (b) February 1, 1999, at a rate of nine percent (9%) per annum, also payable
annually on the same date as principal is paid hereon.
The first payment shall be due on the latest of: (i) 90 days after the
Effective Date, (ii) 90 days after the date on which an order allowing the
Federal Priority Tax Claim of the Holder becomes a Final Order, and (iii) such
other date that is agreed upon by the Holder and the Company. Upon payment in
full, this Note shall be cancelled and returned to the Company.
This Note is one of the Tax Notes referred to in the Joint Plan of
Reorganization of Bradlees Stores, Inc. and Affiliates under Chapter 11 of the
Bankruptcy Code confirmed by the United States Bankruptcy Court, Southern
District of New York on __________, 199_ (the "Plan"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in the
Plan.
The Company shall have the right to prepay this Note, in whole or in
part, at any time or from time to time after the Effective Date, without premium
or penalty.
Payments of principal and interest shall be made in lawful currency of
the United States of America by wire transfer of immediately available funds to
the account of __________ at __________, or in such other manner or such other
place in the United States of America as the Holder shall designate to the
Company in writing.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail addressed, if to the
Company, to Bradlees Stores, Inc., One Bradlees Circle, P.O. Box 9051,
Braintree, Massachusetts 02184-9051, Attn: General Counsel, and if to the
Holder, to ___________________________. The Company or the Holder by notice to
the other may designate additional or different addresses for subsequent
notices or communications.
If a payment date is a legal holiday for banks at a place of payment,
payment may be made at that place on the next succeeding day that is not a legal
holiday for banks, and no interest shall accrue for the intervening period.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the Holder or his attorney duly authorized in writing, a new Note will be issued
to, and registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company shall treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
Except to the extent the Plan otherwise provides, a director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under this Note or for any claim based on, in
respect of or by reason of such obligation or their creation.
This Note has been executed in the State of New York and is governed
by and is to be interpreted in accordance with the laws of the State of New
York, without regard to the law thereof with respect to conflict of laws.
IN WITNESS HEREOF, the Company has executed and delivered this Note as
of the date first written above.
BRADLEES STORES, INC.
By:
Name:
Title:
EXHIBIT G
CONVERSION OF NEW NOTES
SECTION 1.01 CONVERSION PRIVILEGE.
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Subject to and upon compliance with the provisions of this
Exhibit G, at the option of the holder thereof, any New Note may at any time
after the first anniversary of their issuance be converted, in whole, or in part
in multiples of $1,000 principal amount, into fully paid and non-assessable
shares of New Common Stock issuable upon conversion of the New Notes, at the
Conversion Price in effect at the Date of Conversion, until and including, but
not after the close of business on the second Business Day prior to Stated
Maturity, or unless such New Note or some portion thereof shall have been called
for redemption or delivered for repurchase prior to such date and no default is
made in making due provision for the payment of the redemption price in
accordance with the terms of the Plan (including this Exhibit) and the New
Notes, in which case, with respect to such New Note or portion thereof as has
been so called for redemption or delivered for repurchase, such New Note or
portion thereof may be so converted until and including, but not after, the
close of business on the Second Business Day prior to the Redemption Date or
Repurchase Date, as applicable, for such New Note, unless the Reorganized BSI
subsequently fails to pay the applicable Redemption Price or Repurchase Price,
as the case may be.
SECTION 1.02 EXERCISE OF CONVERSION PRIVILEGE.
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In order to exercise the conversion privilege, the Holder of any
New Note to be converted shall surrender such New Note to the Reorganized BI at
any time during usual business hours at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the New Note, that
the Holder elects to convert such New Note or a stated portion thereof
constituting a multiple of $1,000 principal amount, and, if such New Note is
surrendered for conversion during the period between the close of business on
any Record Date and the opening of business on the next following Interest
Payment Date and has not been called for redemption on a Redemption Date which
occurs within such period, accompanied also by payment to the Reorganized BSI of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the New Note being surrendered for conversion,
notwithstanding such conversion. The Holder of any New Note at the close of
business on a Record Date will be entitled to receive the interest payable on
such New Note on the corresponding Interest Payment Date notwithstanding the
conversion thereof after such Record Date. The interest payment with respect to
a Note called for redemption on a date during the period from the close of
business on or after any Record Date to the close of business on the Business
Day following the corresponding Interest Payment Date will be payable on the
corresponding Interest Payment Date to the registered Holder at the close of
business on that Record Date (notwithstanding the conversion of such Note before
the corresponding Interest Payment Date) and a Holder who elects to convert need
not include funds equal to the interest paid. Such notice of conversion
shall also state the name or names (with address) in which the certificate or
certificates for shares of New Common Stock shall be issued. New Notes
surrendered for conversion shall (if reasonably required by the Reorganized BI
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Reorganized BI duly
executed by, the Holder or his attorney duly authorized in writing. As promptly
as practicable after the receipt of such notice and the surrender of such New
Note as aforesaid, the Reorganized BI shall, subject to the provisions of
Section 1.08 of this Exhibit I, issue and deliver at such office or agency to
such Holder, or on his written order, a certificate or certificates for the
number of full shares of New Common Stock issuable on such conversion of New
Notes in accordance with the provisions of this Exhibit I and Cash, as provided
in Section 1.03 of this Exhibit I, in respect of any fraction of a share of New
Common Stock otherwise issuable upon such conversion. Such conversion shall be
deemed to have been effected immediately prior to the close of business on the
date (herein called the "Date of Conversion") on which such New Note shall have
been surrendered as aforesaid, and the person or persons in whose name or names
any certificate or certificates for shares of New Common Stock shall be issuable
upon such conversion shall be deemed to have become on the Date of Conversion
the holder or holders of record of the shares represented thereby; provided,
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however, that any such surrender on any date when the stock transfer books of
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the Reorganized BI shall be closed shall cause the person or persons in whose
name or names the certificate or certificates for such shares are to be issued
to be deemed to have become the recordholder or holders thereof for all purposes
at the opening of business on the next succeeding day on which such stock
transfer books are open but such conversion shall nevertheless be at the
Conversion Price in effect at the close of business on the date when such New
Note shall have been so surrendered with the conversion notice. In the case of
conversion of a portion, but less than all, of a New Note, the Reorganized
Corporations shall as promptly as practicable execute, and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Reorganized BI, a New Note or New Notes in the aggregate principal amount of the
unconverted portion of the New Note surrendered. Except as otherwise expressly
provided in this Indenture, no payment or adjustment shall be made for interest
accrued on any New Note (or portion thereof) converted or for dividends or
distributions on any New Common Stock issued upon conversion of any New Note.
SECTION 1.03 FRACTIONAL INTERESTS.
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No fractions of shares or scrip representing fractions of shares
shall be issued upon conversion of New Notes. If more than one New Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the New Notes so surrendered. If any
fraction of a share of New Common Stock would, except for the foregoing
provisions of this Section 1.03, be issuable on the conversion of any New Note
or New Notes, the Reorganized BSI shall make payment in lieu thereof in an
amount of Cash equal to the value of such fraction computed on the basis of the
last sale price of the New Common Stock as reported on the NASDAQ (or if not
listed for trading thereon, then on the principal national securities exchange
on which the New Common Stock is listed or admitted to trading) at the close of
business on the Date of Conversion or if no such sale takes place on such day,
the last
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sale price for such day shall be the average of the closing bid and asked prices
regular way on the NASDAQ (or if not listed for trading thereon, on the
principal national securities exchange on which the New Common Stock is listed
or admitted to trading) for such day (any such last sale price being hereinafter
referred to as the "Last Sale Price"). If on such Trading Day the New Common
Stock is not quoted by any such organization, the closing price on the prior
Trading Day shall be used.
SECTION 1.04 CONVERSION PRICE.
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The Conversion Price per share of New Common Stock issuable upon
conversion of the New Notes shall initially be the price equal to the arithmetic
unweighted average closing price of such stock during the twenty (20) business
days prior to the one year anniversary of the issuance of the New Notes.
SECTION 1.05 ADJUSTMENT OF CONVERSION PRICE.
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The Conversion Price (herein called the "Conversion Price") shall
be subject to adjustment from time to time as follows:
(a) In case the Reorganized BI shall (1) make or pay a dividend
(or other distribution) in shares of New Common Stock on any class of Capital
Stock of the Reorganized BI, (2) subdivide its outstanding shares of New Common
Stock into a greater number of shares or (3) combine or reclassify its
outstanding shares of New Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior to such action shall be adjusted so
that the Holder of any New Note thereafter surrendered for conversion shall be
entitled to receive the number of shares of New Common Stock that he would have
owned immediately following such action had such New Note been converted
immediately prior thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately, except as provided in subsection (h) below,
after the record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision or
combination.
(b) In case the Reorganized BI shall issue rights, options or
warrants to all holders of New Common Stock entitling them to subscribe for or
purchase shares of New Common Stock at a price per share less than the then
current market price per share of the New Common Stock (as determined pursuant
to subsection (f) below) on the record date mentioned below, the Conversion
Price shall be adjusted to a price, computed to the nearest cent, so that the
same shall equal the price determined by multiplying:
(i) the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by a fraction, of which
(ii) the numerator shall be (A) the number of shares of New
Common Stock outstanding on the date of issuance of such rights, options or
warrants, immediately prior to such issuance, plus (B) the number of shares
which the aggregate offering price of the total number of shares so offered
for subscription or purchase would purchase at such current market price
(determined by multiplying such total number of shares by the
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exercise price of such rights, options or warrants and dividing the product
so obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of New
Common Stock outstanding on the date of issuance of such rights, options or
warrants, immediately prior to such issuance, plus (B) the number of
additional shares of New Common Stock which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (h) below, after the record date for the determination of holders
entitled to receive such rights, options or warrants; provided, however, that if
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any such rights, options or warrants issued by the Reorganized BI as described
in this subsection (b) are only exercisable upon the occurrence of certain
triggering events relating to control and provided for in shareholder rights
plans, then the Conversion Price will not be adjusted as provided in this
subsection (b) until such triggering events occur.
(c) In case the Reorganized BI or any subsidiary of the
Reorganized BI shall distribute to all holders of New Common Stock, any of its
assets, evidences of indebtedness, cash or other assets or shares of Capital
Stock other than New Common Stock (including securities, but other than (x)
dividends or distributions exclusively in cash or (y) any dividend or
distribution for which an adjustment is required to be made in accordance with
subsection (a) or (b) above), then in each such case the Conversion Price shall
be adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such distribution by
a fraction of which the numerator shall be the then current market price per
share of the New Common Stock (determined as provided in subsection (f) below)
on the record date mentioned below less the then fair market value (as
reasonably determined in good faith by the Board of Directors of the Reorganized
BI) of the portion of the assets so distributed applicable to one share of New
Common Stock, and of which the denominator shall be such current market price
per share of the New Common Stock. Such adjustment shall become effective
immediately, except as provided in subsection (h) below, after the record date
for the determination of stockholders entitled to receive such distribution.
Notwithstanding the foregoing, in the event that the fair market value of the
assets, evidences of indebtedness or other securities so distributed applicable
to one share of New Common Stock equals or exceeds such current market price per
share of New Common Stock, or such current market price exceeds such fair market
value by less than $0.10 per share, the Conversion Price shall not be adjusted
pursuant to this subsection (c) and, to the extent applicable, the provisions of
subsection (k) shall apply to such distribution.
(d) In case the Reorganized BI or any subsidiary of the
Reorganized BI shall make any distribution consisting exclusively of cash
(excluding any cash portion of distributions for which an adjustment is required
to be made in accordance with (c) above, or cash distributed upon a merger or
consolidation) to all holders of New Common Stock in an aggregate amount that,
combined together with (i) all other such all-cash distributions made within the
then preceding 12 months in respect of which no adjustment has been made and
(ii) any cash and the fair market value of other consideration paid or payable
in respect of any tender offer by the Reorganized BI or any of its subsidiaries
for New Common Stock concluded within the preceding 12 months in respect of
which no adjustment has been made, exceeds 15% of the
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Reorganized BI's market capitalization (defined as being the product of the then
current market price of the New Common Stock (determined as provided in
subsection (f) below) times the number of shares of New Common Stock then
outstanding) on the record date of such distribution, then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of such distribution by a fraction of which the numerator shall be the
then current market price per share of the New Common Stock on such record date
less the amount of the cash so distributed applicable to one share of New Common
Stock, and of which the denominator shall be such current market price per share
of the New Common Stock. Such adjustment shall become effective immediately,
except as provided in subsection (h) below, after the record date for the
determination of stockholders entitled to receive such distribution.
Notwithstanding the foregoing, in the event that the cash so distributed
applicable to one share of New Common Stock equals or exceeds such current
market price per share of New Common Stock, or such current market price exceeds
such amount of cash by less than $0.10 per share, the Conversion Price shall not
be adjusted pursuant to this subsection (d), and, to the extent applicable, the
provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer
made by the Reorganized BI or any subsidiary of the Reorganized BI for all or
any portion of the New Common Stock (any such tender or exchange offer being
referred to as an "Offer") that involves an aggregate consideration having a
fair market value as of the expiration of such Offer (the "Expiration Time")
that, together with (i) any cash and the fair market value of any other
consideration payable in respect of any other Offer, as of the expiration of
such other Offer, expiring within the 12 months preceding the expiration of such
Offer and in respect for which no Conversion Price adjustment pursuant to this
subsection (e) has been made and (ii) the aggregate amount of any all-cash
distributions referred to in subsection (d) of this Section 1.05 to all holders
of New Common Stock within the 12 months preceding the expiration of such Offer
for which no conversion price adjustment pursuant to such subsection (d) has
been made, exceeds 15% of the product of the then current market price per share
(determined as provided in subsection (f) below) of the New Common Stock on the
Expiration Time times the number of shares of New Common Stock outstanding
(including any tendered shares) on the Expiration Time, the Conversion Price
shall be reduced by multiplying such Conversion Price in effect immediately
prior to the Expiration Time by a fraction of which the numerator shall be (i)
the product of the then current market price per share (determined as provided
in subsection (f) below) of the New Common Stock on the Expiration Time times
the number of shares of New Common Stock outstanding (including any tendered
shares) on the Expiration Time minus (ii) the fair market value of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the Offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted being
referred to as the "Purchased Shares") and the denominator shall be the product
of (i) such current market price per share on the Expiration Time times (ii)
such number of outstanding shares on the Expiration Time less the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time.
For purposes of this subsection (e), the fair market value of any consideration
with respect to an Offer shall be reasonably determined in good faith by the
Board of Directors of the Reorganized
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BI and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b),
(c), (d) and (e) above, the current market price per share of New Common Stock
on any date shall be deemed to be the average of the Last Sale Prices of a share
of New Common Stock for the five consecutive Trading Days selected by the
Reorganized BI commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the date in question and the date before the " `ex'
date," with respect to the issuance, distribution or Offer requiring such
computation. If on any such Trading Day the New Common Stock is not quoted by
any organization referred to in the definition of Last Sale Price in Section
1.03 of this Exhibit I, the fair value of the New Common Stock on such day, as
reasonably determined in good faith by the Board of Directors of the Reorganized
BI, shall be used. For purposes of this paragraph, the term "'ex' date," when
used with respect to any issuance, distribution or payments with respect to an
Offer, means the first date on which the New Common Stock trades regular way on
the NASDAQ (or if not listed or admitted to trading thereon, then on the
principal national securities exchange on which the New Common Stock is listed
or admitted to trading) without the right to receive such issuance, distribution
or Offer.
(g) In addition to the foregoing adjustments in subsections (a),
(b), (c), (d) and (e) above, the Reorganized BI will be permitted to make such
reductions in the Conversion Price as it considers to be advisable in order that
any event treated for Federal income tax purposes as a dividend of stock or
stock rights will not be taxable to the holders of the shares of New Common
Stock.
(h) In the event the Reorganized BI elects to make such a
reduction in the Conversion Price, the Reorganized BI will comply with the
requirements of Rule 14e-1 of the Exchange Act and any other Federal and state
laws and regulations thereunder if and to the extent that such laws and
regulations are applicable in connection with the reduction of the Conversion
Price of the New Notes; provided that any provisions of this Indenture which
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
(i) In any case in which this Section 1.05 shall require that an
adjustment (including by reason of the last sentence of subsection (a) or (c)
above) be made immediately following a record date, the Reorganized BI may elect
to defer the effectiveness of such adjustment (but in no event until a date
later than the effective time of the event giving rise to such adjustment), in
which case the Reorganized BI shall, with respect to any New Note converted
after such record date and on and before such adjustment shall have become
effective (i) defer paying any Cash payment pursuant to Section 1.03 of this
Exhibit I or issuing to the Holder of such New Note the number of shares of New
Common Stock and other Capital Stock of the Reorganized BI (or other assets or
securities) issuable upon such conversion in excess of the number of shares of
New Common Stock and other Capital Stock of the Reorganized BI issuable
thereupon only on the basis of the Conversion Price prior to adjustment, and
(ii) not later than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate Cash payment pursuant to Section
1.03 of this Exhibit I and issue to such Holder the additional shares of New
Common Stock and other Capital Stock of the Reorganized BI issuable on such
conversion.
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(j) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1.0%) of the Conversion Price; provided, that any adjustments which by
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reason of this subsection (i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Exhibit I shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
Whenever the Conversion Price is adjusted as herein provided, the Reorganized BI
shall promptly (i) File with the Trustee and each conversion agent an Officers'
Certificate setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to each holder
of New Notes at his address as the same appears on the registry books of the
Reorganized BI.
(k) In the event that the Reorganized BI distributes rights
(including rights to distributions referred to by paragraphs (c) and (d) of this
Section 1.05 to the extent this paragraph (k) applies thereto) or warrants
(other than those referred to in subsection (b) above) pro rata to holders of
New Common Stock, so long as any such rights or warrants have not expired or
been redeemed by the Reorganized BI, the Reorganized BI shall make proper
provision so that the Holder of any New Note surrendered for conversion will be
entitled to receive upon such conversion, in addition to the shares of New
Common Stock issuable upon such conversion (the "Conversion Shares"), a number
of rights or warrants to be determined as follows: (i) if such conversion occurs
on or prior to the date for the distribution to the holders of rights or
warrants of separate certificates evidencing such rights or warrants (the
"Distribution Date"), the same number of rights or warrants to which a holder of
a number of shares of New Common Stock equal to the number of Conversion Shares
is entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the rights or warrants, and (ii) if such
conversion occurs after such Distribution Date, the same number of rights or
warrants to which a holder of the number of shares of New Common Stock into
which the principal amount of such Note so converted was convertible immediately
prior to such Distribution Date would have been entitled on such Distribution
Date in accordance with the terms and provisions of and applicable to the rights
or warrants.
SECTION 1.06 CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF RECLASSIFICATION,
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CHANGE, MERGER, CONSOLIDATION OR SALE OF ASSETS.
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If any of the following shall occur, namely: (a) any
reclassification or change of outstanding shares of New Common Stock issuable
upon conversion of the New Notes (other than a change in par value, or from par
value to no par value, or from no par value, to par value, or as a result of a
subdivision or combination), (b) any consolidation or merger of the Reorganized
BI with or into any other Person, or the merger of any other Person with or into
the Reorganized BI (other than a merger which does not result in any
reclassification, change, conversion, exchange or cancellation of outstanding
shares of New Common Stock) or (c) any sale, transfer or conveyance of all or
substantially all of the assets of the Reorganized BI (computed on a
consolidated basis), then the Reorganized BI, or such successor or purchasing
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entity, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each New Note then outstanding shall have the right to convert such New Note
only into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale, transfer or conveyance by a holder of the number of
shares of New Common Stock issuable upon conversion of such New Note immediately
prior to such reclassification, change, consolidation, merger, sale, transfer or
conveyance assuming such holder of New Common Stock of the Reorganized BI failed
to exercise his rights of an election, if any, as to the kind or amount of
securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance (provided that if
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the kind or amount of securities, cash, and other property receivable upon such
reclassification, change, consolidation, merger, sale, transfer or conveyance is
not the same for each share of New Common Stock of the Reorganized BI held
immediately prior to such reclassification, change, consolidation, merger, sale,
transfer or conveyance in respect of which such rights of election shall not
have been exercised ("non-electing share"), then for the purpose of this Section
1.06 the kind and amount of securities, cash and other property receivable upon
such reclassification, change, consolidation, merger, sale, transfer or
conveyance by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Exhibit
I. If, in the case of any such consolidation, merger, sale or conveyance,
securities and property (including cash) receivable thereupon by a holder of
shares of New Common Stock includes shares of stock or other securities and
property (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the New Notes as the Board of Directors of the
Reorganized BI shall reasonably consider necessary by reason of the foregoing.
The provisions of this Section 1.06 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall
be mailed to each Holder of New Notes at his address as the same appears on the
registry books of the Reorganized BI.
SECTION 1.07 NOTICE OF CERTAIN EVENTS.
In case:
(a) the Reorganized BI shall declare a dividend (or any other
distribution) payable to the holders of New Common Stock (other than cash
dividends);
(b) the Reorganized BI shall authorize the granting to the
holders of New Common Stock of rights, warrants or options to subscribe for or
purchase any shares of stock of any class or of any other rights;
(c) the Reorganized BI shall authorize any reclassification or
change of the
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New Common Stock (including a subdivision or combination of its outstanding
shares of New Common Stock), or any consolidation or merger to which the
Reorganized BI is a party and for which approval of any stockholders of the
Reorganized BI is required, or the sale or conveyance of all or substantially
all the property or business of the Reorganized BI;
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Reorganized BI; or
(e) the Reorganized BI or any of its subsidiaries shall complete
an Offer; then, the Reorganized BI shall cause to be Filed at the office or
agency maintained for the purpose of conversion of the New Notes as provided in
the Section 1.12 of this Exhibit I, and shall cause to be mailed to each Holder
of New Notes, at his address as it shall appear on the registry books of the
Reorganized BI, at least 20 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one date
is specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options or Offer, 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, rights, warrants or options or to participate in such Offer are to
be determined, or (2) such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up is expected to become
effective and the date, if any is to be fixed, 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 such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up.
SECTION 1.08 TAXES ON CONVERSION.
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The Reorganized BI will pay any and all documentary, stamp or
similar taxes payable to the United States of America or any political
subdivision or taxing authority thereof or therein in respect of the issue or
delivery of shares of New Common Stock on conversion of New Notes pursuant
thereto; provided, however, that the Reorganized BI shall not be required to pay
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any tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of New Common Stock in a name other than that of the Holder
of the New Notes to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid to the
Reorganized BI the amount of any such tax or has established, to the
satisfaction of the Reorganized BI, that such tax has been paid. The Reorganized
BI extends no protection with respect to any other taxes imposed in connection
with conversion of New Notes.
SECTION 1.09 REORGANIZED BI TO PROVIDE STOCK.
-------------------------------
The Reorganized BI shall reserve, free from preemptive rights,
out of its authorized but unissued shares, sufficient shares to provide for the
conversion of the New Notes from time to time as such New Notes are presented
for conversion, provided, that nothing contained herein shall be construed to
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preclude the Reorganized BI from satisfying its obligations in respect of the
conversion of New Notes by delivery of repurchased shares of New
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Common Stock which are held in the treasury of the Reorganized BI.
If any shares of New Common Stock to be reserved for the purpose
of conversion of New Notes hereunder require registration with or approval of
any governmental authority under any Federal or state law before such shares may
be validly issued or delivered upon conversion, then the Reorganized BI
covenants that it will in good faith and as expeditiously as possible use its
best efforts to secure such registration or approval, as the case may be,
provided, however, that nothing in this Section 1.09 shall be deemed to limit in
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any way the obligations of the Reorganized BI provided in this Exhibit I.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the New Common Stock,
the Reorganized BI will take all corporate action which may be necessary in
order that the Reorganized BI may validly and legally issue fully paid and non-
assessable shares of New Common Stock at such adjusted Conversion Price.
The Reorganized BI covenants that all shares of New Common Stock
which may be issued upon conversion of New Notes will upon issue be fully paid
and non-assessable by the Reorganized BI and free of preemptive rights.
SECTION 1.10 DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
------------------------------------------------
Neither the Trustee nor any agent of the Trustee shall at any
time be under any duty or responsibility to any Holder of New Notes to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section 1.05
of this Exhibit I, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any agent of the Trustee shall be accountable with respect to
the validity or value (or the kind or amount) of any shares of New Common Stock,
or of any securities or property (including cash), which may at any time be
issued or delivered upon the conversion of any New Note; and neither the Trustee
nor any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any agent of the Trustee shall be responsible for any failure of
the Reorganized BI to issue, register the transfer of or deliver any shares of
New Common Stock or stock certificates or other securities or property
(including cash) upon the surrender of any New Note for the purpose of
conversion or to comply with any of the covenants of the Reorganized BI
contained in this Exhibit I.
SECTION 1.11 RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED NEW NOTES.
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Any funds which at any time shall have been deposited by the
Reorganized BSI or on its behalf with the Trustee or any other Paying Agent for
the purpose of paying the principal of and interest on any of the New Notes and
which shall not be required for such purposes because of the conversion of such
New Notes, as provided in this Exhibit I, shall after such conversion be repaid
to the Reorganized BSI by the Trustee or such other Paying Agent.
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SECTION 1.12 REGISTRAR AND PAYING AGENT.
--------------------------
Reorganized BSI shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where New Notes may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where New Notes may be presented for payment ("Paying Agent") and where notices
and demands to or upon Reorganized BSI in respect of the New Notes may be
served. Except as otherwise prohibited in the New Notes, Reorganized BSI may act
as Registrar or Paying Agent. The Registrar shall keep a register of the New
Notes and of their transfer and exchange. Reorganized BSI may have one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Reorganized BSI hereby initially appoints
______________ as Registrar and Paying Agent, and ________ has agreed to so act.
Reorganized BSI shall enter into an appropriate written agency
agreement with any Agent, which agreement shall implement the provisions of the
Plan, the New Notes and this Exhibit I that relate to such Agent. Reorganized
BSI shall promptly notify the Trustee in writing of the name and address of any
such Agent. If Reorganized BSI fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
SECTION 1.13 DEFINITIONS USED IN EXHIBIT I.
-----------------------------
As used in Exhibit I, the following terms shall have the meanings set forth
below. Capitalized terms not otherwise defined below shall have the meanings
ascribed to such terms in the Plan. Article I of the Plan shall apply to this
Exhibit I.
"Agent" means any Registrar, Paying Agent or co-Registrar.
-----
"Capital Stock" means, with respect to any corporation, any and
-------------
all shares, interests, rights to purchase (other than convertible or
exchangeable indebtedness), warrants, options, participations or other
equivalents of or interests (however designated) in stock issued by that
corporation.
"Conversion Price" shall have the meaning specified in Section
----------------
1.05 of this Exhibit I.
"Conversion Shares" shall have the meaning specified in Section
-----------------
1.05 of this Exhibit I.
"Date of Conversion" shall have the meaning specified in Section
------------------
1.02 of this Exhibit I.
"Distribution Date" shall have the meaning specified in Section
-----------------
1.05 of this Exhibit I.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations promulgated by the United States
Securities and Exchange Commission thereunder.
"Expiration Time" shall have the meaning specified in Section
---------------
1.05 of this
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Exhibit I.
"Holder" means the person in whose name a New Note is registered
------
on the Registrar's books.
"Interest Payment Date" means the stated due date of an
---------------------
installment of interest on the New Notes.
"Last Sale Price" shall have the meaning specified in Section
---------------
1.03 of this Exhibit I.
"non-electing share" shall have the meaning specified in Section
------------------
1.06 of this Exhibit I.
"Offer" shall have the meaning specified in Section 1.05 of this
-----
Exhibit I.
"Officers' Certificate" means, with respect to the Reorganized
---------------------
BI, a certificate signed by two officers of the Reorganized BI and otherwise in
form and substance acceptable to the Trustee.
"Paying Agent" shall have the meaning specified in Section 1.12
------------
of this Exhibit I.
"Purchased Shares" shall have the meaning specified in Section
----------------
1.05 of this Exhibit I.
"Record Date" means a Record Date specified in the New Notes
-----------
whether or not such Record Date is a Business Day.
"Registrar" shall have the meaning specified in Section 1.12 of
---------
this Exhibit I.
"Redemption Date," when used with respect to any New Note to be
----------------
redeemed, means the date fixed for such redemption pursuant to the terms of the
New Note.
"Redemption Price," when used with respect to any New Note to be
----------------
redeemed, means the redemption price for such redemption pursuant to the terms
of the New Note, which shall include, without duplication, in each case, accrued
and unpaid interest, if any, to and including the Redemption Date, excluding the
date of issuance.
"Repurchase Date" shall have the meaning ascribed to such term in
---------------
the New Note.
"Repurchase Price" shall have the meaning specified the New
----------------
Notes.
"Stated Maturity," when used with respect to any New Note, means
----------------
August 1, 2003.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
-----------
Friday, other than any day on which securities are not traded on the NASDAQ.
"Trustee" means the ___________, the trustee for the New Notes.
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