EXHIBIT 4.6
ROLLING PIN KITCHEN EMPORIUM, INC.
AND
CONTINENTAL STOCK TRANSFER
AND TRUST COMPANY
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REDEEMABLE WARRANT AGREEMENT
Dated as of November __, 1998
This AGREEMENT, dated this _____ day of November, 1998 is by and
between ROLLING PIN KITCHEN EMPORIUM, INC., a Delaware corporation (the
"Company"), and CONTINENTAL STOCK TRANSFER AND TRUST COMPANY, as Warrant Agent
(the "Warrant Agent").
R E C I T A L S:
WHEREAS, pursuant to the Amended Plan of Reorganization of the Xxxxxxx
Companies, Inc., a Delaware corporation ("Xxxxxxx"), The Cookstore Inc., an Ohio
corporation, and The Cookstore Worthington, Inc., an Ohio corporation, dated
June 24, 1998 (the "Plan"), Xxxxxxx, among other things, (i) changed its name
initially to Home Retail Holdings, Inc., and subsequently to Rolling Pin Kitchen
Emporium, Inc., (ii) exchanged its former equity securities with two classes of
common stock, including the Company's Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), and (iii) delivered to the holders of an
aggregate of 2,408,337 redeemable warrants, issued pursuant to the Warrant
Agreement, dated October 31, 1995, between the Warrant Agent and Xxxxxxx (the
"Old Warrants"), an aggregate of 52,573 redeemable warrants pursuant to this
Agreement (the "New Warrants").
WHEREAS, pursuant to the Plan the Old Warrants and all other securities
of Gaylord have been cancelled;
WHEREAS, the Company desires to provide for the issuance of
certificates representing the New Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer and exchange of certificates representing the
New Warrants and the exercise of the New Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the New Warrants and the certificates representing the New
Warrants and the respective rights and obligations thereunder of the Company,
the holders of certificates representing the New Warrants and the Warrant Agent,
the parties hereto agree as follows:
Section 1. Definitions.
As used herein, the following terms shall have the following meanings,
unless the context shall otherwise require:
(a) "Common Stock" shall mean equity securities of the Company of any
class whether now or hereafter authorized, which has the right to participate in
the voting and in the distribution of earnings and assets of the Company without
limit as to amount or percentage, including the Class A Common Stock.
(b) "Corporate Office" shall mean the office of the Warrant Agent (or
its successor) at which at any particular time its principal business in New
York, New York, shall be administered, which office is located on the date
hereof at 0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) "Exercise Date" shall mean, subject to the provisions of Section
5(b) hereof, as to any New Warrant, the date on which the Warrant Agent shall
have received both (i) the Warrant Certificate representing such New Warrant,
with the exercise form thereon duly executed by the Registered Holder hereof or
his attorney duly authorized in writing, and (ii) payment in cash or by
certified or bank check made payable to the Warrant Agent for the account of the
Company, of the amount equal to the applicable Purchase Price.
(d) "Initial Warrant Exercise Date" shall mean February 12, 1999.
(e) "Initial Warrant Redemption Date" shall mean April 1, 1999.
(f) "Purchase Price" shall mean, subject to modification and adjustment
as provided in Section 8, $11.57 per share subject to the Company's right, in
its sole discretion, to decrease the Purchase Price for a period of not less
than 30 days on not less than 30 days' prior written notice to the Registered
Holders.
(g) "Registered Holder" shall mean the person in whose name any
certificate representing the New Warrants shall be registered on the books
maintained by the Warrant Agent pursuant to Section 6.
(h) "Subsidiary" or "Subsidiaries" shall mean any corporation or
corporations, as the case may be, of which stock having ordinary power to elect
a majority of the Board of Directors of such corporation (regardless of whether
or not at the time stock of any other class or classes of such corporation shall
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company or by one or more Subsidiaries.
(i) "Transfer Agent" shall mean Continental Stock Transfer and Trust
Company, or its authorized successor.
(j) "Warrant Certificate" shall mean a certificate representing each of
the New Warrants substantially in the form annexed hereto as Exhibit A.
(k) "Warrant Expiration Date" shall mean, unless the New Warrants are
redeemed as provided in Section 9 prior to such date, 5:00 p.m. (New York time),
on October 30, 1999, or, if such date shall in the State of New York be a
holiday or a day on which banks are authorized to close, then 5:00 p.m. (New
York time) on the next business day, subject to the Company's right, prior to
the Warrant Expiration Date, in its sole discretion, to extend such Warrant
Expiration Date on five business days prior written notice to the Registered
Holders.
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(l) "Warrant Agent" shall mean Continental Stock Transfer and Trust
Company, or its authorized successor.
Section 2. Warrants and Issuance of Warrant Certificates.
(a) Each New Warrant shall initially entitle the Registered Holder of
such New Warrant to purchase at the Purchase Price from the Initial Warrant
Exercise Date until the Warrant Expiration Date one share of Class A Common
Stock upon the exercise thereof, subject to modification and adjustment as
provided in Section 8.
(b) Upon execution of this Agreement, Warrant Certificates representing
52,573 New Warrants to purchase up to an aggregate of 52,573 shares of Class A
Common Stock (subject to modification and adjustment as provided in Section 8)
shall be executed by the Company and delivered to the Warrant Agent.
(c) From time to time, up to the Warrant Expiration Date, as the case
may be, the Warrant Agent shall countersign and deliver Warrant Certificates in
the required denominations of one or whole number multiples thereof to the
person entitled thereto in connection with any transfer or exchange permitted
under this Agreement. No Warrant Certificates shall be issued except (i) Warrant
Certificates initially issued hereunder, (ii) Warrant Certificates issued upon
any transfer or exchange of New Warrants, (iii) Warrant Certificates issued in
replacement of lost, stolen, destroyed or mutilated Warrant Certificates
pursuant to Section 7, and (iv) at the option of the Company, Warrant
Certificates in such form as may be approved by its Board of Directors, to
reflect any adjustment or change in the Purchase Price, the number of shares of
Class A Common Stock purchasable upon exercise of the New Warrants or the
redemption price therefor made pursuant to Section 8 hereof.
Section 3. Form and Execution of Warrant Certificates.
(a) The Warrant Certificates shall be substantially in the form annexed
hereto as Exhibit A (the provisions of which are hereby incorporated herein) and
may have such letters, numbers or other marks of identification or designation
and such legends, summaries or endorsements printed, lithographed or engraved
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 law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the New Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer, exchange or in lieu of mutilated,
lost, stolen or destroyed Warrant Certificates).
(b) The Warrant Certificates shall be executed on behalf of the Company
by its Chairman, President or any Vice President and by its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary, by manual or
facsimile signatures printed thereon, and shall have imprinted thereon a
facsimile of the Company's seal. The Warrant Certificates shall be manually
countersigned by the Warrant Agent. In case any officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be an officer of the
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Company before the date of issuance of the Warrant Certificates or before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates, nevertheless, may be countersigned by the Warrant Agent,
issued and delivered with the same force and effect as though the person who
signed such Warrant Certificates had not ceased to be an officer of the Company.
Section 4. Exercise.
(a) New Warrants in denominations of one or whole number multiples
thereof may be exercised commencing at any time on or after the Initial Warrant
Exercise Date, but not after the Warrant Expiration Date, upon the terms and
subject to the conditions set forth herein and in the applicable Warrant
Certificate. A New Warrant shall be deemed to have been exercised immediately
prior to the close of business on the Exercise Date, provided that the Warrant
Certificate representing such New Warrant, with the exercise form thereon duly
executed by the Registered Holder thereof or his attorney duly authorized in
writing, together with payment in cash or by check made payable to the Warrant
Agent for the account of the Company, of an amount equal to the Purchase Price
has been received by the Warrant Agent. The person entitled to receive the
securities deliverable upon such exercise shall be treated for all purposes as
the holder of such securities as of the close of business on the Exercise Date.
As soon as practicable on or after the Exercise Date and in any event within
five business days after having received authorization from the Company, the
Warrant Agent on behalf of the Company shall cause to be issued to the person or
persons entitled to receive the same a stock certificate or certificates for the
shares of Class A Common Stock deliverable upon such exercise, and the Warrant
Agent shall deliver the same to the person or persons entitled thereto. Upon the
exercise of any New Warrant, the Warrant Agent shall promptly notify the Company
in writing of such fact and of the number of securities delivered upon such
exercise and, subject to subsection (b) below, shall cause all payments of an
amount in cash or by check made payable to the order of the Company, equal to
the Purchase Price, to be deposited promptly in the Company's bank account.
(b) The Company shall not be required to issue fractional shares upon
the exercise of New Warrants. The New Warrants may only be exercised in such
multiples as are required to permit the issuance by the Company of one or more
whole shares. If one or more New Warrants shall be presented for exercise in
full at the same time by the same Registered Holder, the number of whole shares
which shall be issuable upon such exercise thereof shall be computed on the
basis of the aggregate number of shares purchasable on exercise of the New
Warrants so presented. If any fraction of a share would, except for the
provisions provided herein, be issuable on the exercise of any New Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to
such fraction multiplied by the then current market value of a share of Class A
Common Stock, determined as follows:
(1) If the Class A Common Stock is listed or admitted to
unlisted trading privileges on the New York Stock Exchange ("NYSE") or the
American Stock Exchange ("AMEX") or is traded on the Nasdaq/National Market
("NNM"), the current market value of a share of Class A Common Stock shall be
the closing sale price at the end of the regular trading session on the last
business day prior to the Exercise Date of the New Warrants on whichever of such
exchanges or the NNM had the highest average daily trading volume for the Class
A Common Stock on such day; or
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(2) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on either the NYSE or the AMEX and is not traded on
the NNM, but is quoted or reported on Nasdaq, the current market value of a
share of Class A Common Stock shall be the average of the last reported closing
bid and asked prices (or the last sale price, if then reported by Nasdaq) of the
Class A Common Stock at the end of the regular trading session on the last
business day prior to the Exercise Date of the New Warrants as quoted or
reported on Nasdaq, as the case may be; or
(3) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on either of the NYSE or the AMEX and is not traded
on the NNM or quoted or reported on Nasdaq, but is listed or admitted to
unlisted trading privileges on the Boston Stock Exchange ("BSE") or other
national securities exchange (other than the NYSE or the AMEX), the current
market value of a share of Class A Common Stock shall be the closing sale price
of the Class A Common Stock at the end of the regular trading session on the
last business day prior to the Exercise Date of the New Warrants on whichever of
such exchange has the highest average daily trading volume for the Class A
Common Stock on such day; or
(4) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on any national securities exchange, or listed for
trading on the NNM or quoted or reported on Nasdaq, but is traded in the
over-the-counter market, the current market value of a share of Class A Common
Stock shall be the average of the last reported bid and asked prices of the
Class A Common Stock reported by the National Quotation Bureau, Inc. on the last
business day prior to the Exercise Date of the New Warrants; or
(5) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on any national securities exchange, or listed for
trading on the NNM or quoted or reported on Nasdaq, and bid and asked prices of
the Class A Common Stock are not reported by the National Quotation Bureau,
Inc., the current market value of a share of Class A Common Stock shall be an
amount, not less than the book value thereof as of the end of the most recently
completed fiscal quarter of the Company ending prior to the date of exercise,
determined in accordance with generally accepted accounting principles,
consistently applied.
Section 5. Reservation of Shares; Listing; Payment of Taxes; etc.
(a) The Company shall at all times reserve and keep available out of
its authorized Class A Common Stock, solely for the purpose of issue upon
exercise of New Warrants, such number of shares of Class A Common Stock as shall
then be issuable upon the exercise of all outstanding New Warrants. All of the
shares of Class A Common Stock which shall be issuable upon exercise of the New
Warrants shall, at the time of delivery thereof, be duly and validly issued and
fully paid and nonassessable and free from all preemptive or similar rights,
taxes, liens and charges with respect to the issue thereof, and that upon
issuance such shares shall be listed on each securities exchange, if any, on
which the other shares of outstanding Class A Common Stock of the Company are
then listed.
(b) The Company covenants that if any securities to be reserved for the
exercise of New Warrants hereunder require registration with, or approval of,
any governmental authority under any federal securities law before such
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securities may be validly issued or delivered upon such exercise, then the
Company will file a registration statement under the federal securities laws or
a post effective amendment, and shall use its best efforts to cause the same to
become effective and to keep such registration statement current while any of
the New Warrants are outstanding and deliver a prospectus which complies with
Section 10(a)(3) of the Securities Act of 1933, as amended, (the "Act"), to the
Registered Holder exercising the New Warrant (except, if in the opinion of
counsel to the Company, such registration is not required under the federal
securities law or if the Company receives a letter from the staff of the
Securities and Exchange Commission (the "Commission") stating that it would not
take any enforcement action if such registration is not effected). The Company
shall obtain the appropriate approvals or registrations under state "blue sky"
securities laws. With respect to any such securities, however, the New Warrants
may not be exercised by, or the shares of Class A Common Stock issued to, any
Registered Holder in any state in which such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the issuance of
the New Warrants, or the issuance or delivery of any shares of Class A Common
Stock upon exercise of the New Warrants; provided, however, that if shares of
Class A Common Stock are to be delivered in a name other than the name of the
Registered Holder of the New Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized as the Transfer
Agent to requisition from time to time certificates representing shares of Class
A Common Stock or other securities required upon exercise of the New Warrants,
and the Company will comply with all such requisitions.
Section 6. Exchange and Registration of Transfer.
(a) The Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of New Warrants or may be
transferred in whole or in part commencing on the Initial Warrant Exercise Date.
Warrant Certificates to be so exchanged shall be surrendered to the Warrant
Agent at its Corporate Office, and the Company shall execute and the Warrant
Agent shall countersign, issue and deliver in exchange therefor the Warrant
Certificate(s) that the Registered Holder making the exchange shall be entitled
to receive.
(b) The Warrant Agent shall keep, at such office, books in which it
shall register the Warrant Certificates and the transfer thereof. Upon due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall countersign, issue
and deliver to the transferee or transferees a new Warrant Certificate(s)
representing an equal aggregate number of New Warrants.
(c) With respect to any Warrant Certificates presented for registration
of transfer, or for exchange or exercise, the subscription or exercise form, as
the case may be, on the reverse thereof shall be duly endorsed or be accompanied
by a written instrument(s) of transfer and subscription, in a form satisfactory
to the Company and the Warrant Agent, duly executed by the Registered Holder
thereof or his attorney duly authorized in writing.
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(d) No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates. However, the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
(e) All Warrant Certificates surrendered for exercise or for exchange
shall be promptly canceled by the Warrant Agent.
(f) Prior to due presentment for registration of transfer, the Company
and the Warrant Agent may deem and treat the Registered Holder of any Warrant
Certificate as the absolute owner thereof of each New Warrant represented
thereby (notwithstanding any notations of ownership or writing thereon made by
anyone other than the Company or the Warrant Agent) for all purposes and shall
not be affected by any notice to the contrary.
Section 7. Loss or Mutilation. Upon receipt by the Company and the
Warrant Agent of evidence satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Warrant Certificate and (in the case of
loss, theft or destruction) of indemnity satisfactory to them, and (in case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and the Warrant Agent shall countersign and deliver in lieu thereof a new
Warrant Certificate representing an equal aggregate number of New Warrants.
Applicants for a substitute Warrant Certificate shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Warrant Agent may prescribe.
Section 8. Adjustment of Purchase Price and Number of Shares
Deliverable.
(a) Except with respect to the Company's initial public or private
offering of Class A Common Stock or as hereinafter provided, in the event the
Company shall, at any time or from time to time after the date hereof, (i) issue
any shares of Class A Common Stock for a consideration per share less than the
"Fair Market Value" (as defined in Section 8(h)), (ii) issue any shares of Class
A Common Stock as a stock dividend to the holders of Class A Common Stock, or
(iii) subdivide or combine the outstanding shares of Class A Common Stock into a
greater or lesser number of shares (any such issuance, subdivision or
combination being herein called a "Change of Shares"), then, and thereafter upon
each further Change of Shares, the Purchase Price for the New Warrants (whether
or not the same shall be issued and outstanding) in effect immediately prior to
such Change of Shares shall be adjusted to a price (including any applicable
fraction of a cent to the nearest cent) determined by dividing (i) the sum of
(a) the total number of shares of Common Stock outstanding immediately prior to
such Change of Shares, multiplied by the Purchase Price in effect immediately
prior to such Change of Shares, and (b) the consideration, if any, received by
the Company upon such sale, issuance, subdivision or combination, by (ii) the
total number of shares of Common Stock outstanding immediately after such Change
of Shares; provided; however, that in no event shall the Purchase Price be
adjusted pursuant to this computation to an amount in excess of the Purchase
Price in effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock.
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For the purposes of any adjustment to be made in accordance with this
Section 8(a), the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common Stock
(or of other securities deemed hereunder to involve the issuance or sale of
shares of Common Stock) for a consideration part or all of which shall be cash,
the amount of the cash portion of the consideration therefor deemed to have been
received by the Company shall be: (i) the subscription price, if shares of
Common Stock are offered by the Company for subscription; (ii) the public
offering price (before deducting therefrom any compensation paid or discount
allowed in the sale, underwriting or purchase thereof by underwriters or dealers
or others performing similar services, or any expenses incurred in connection
therewith), if such securities are sold to underwriters or dealers for public
offering without a subscription offering; or (iii) the gross amount of cash
actually received by the Company for such securities, in any other case, in each
case, without deduction for any expenses incurred by the Company in connection
with such transaction.
(2) In case of the issuance or sale (other than as a dividend
or other distribution on any stock of the Company) of shares of Common Stock (or
of other securities deemed hereunder to involve the issuance or sale of shares
of Common Stock) for a consideration part or all of which shall be other than
cash, the amount of the consideration therefor other than cash deemed to have
been received by the Company shall be the value of such consideration as
determined in good faith by the Board of Directors of the Company on the basis
of a record of values of similar property or services.
(3) Shares of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following the record
date for the determination of shareholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(4) The reclassification of securities of the Company other
than shares of Common Stock into securities including shares of Common Stock
shall be deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of shareholders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (2) of this Section 8(a).
(5) The number of shares of Common Stock at any time
outstanding shall be deemed to include the aggregate maximum number of shares
issuable (subject to readjustment upon the actual issuance thereof) upon the
exercise of options, rights or warrants and upon the conversion or exchange of
convertible or exchangeable securities.
(b) Upon each adjustment of the Purchase Price pursuant to this Section
8, the number of shares of Class A Common Stock purchasable upon the exercise of
each New Warrant shall be the number derived by multiplying the number of shares
of Class A Common Stock purchasable immediately prior to such adjustment by the
Purchase Price in effect prior to such adjustment and dividing the product so
obtained by the applicable adjusted Purchase Price.
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(c) In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for shares of Class A Common Stock, or
issue any securities convertible into or exchangeable for shares of Class A
Common Stock, for a consideration per share (determined as provided in Section
8(a) and as provided below) less than the Fair Market Value in effect
immediately prior to the issuance of such options, rights or warrants, or such
convertible or exchangeable securities, or without consideration (including the
issuance of any such securities by way of dividend or other distribution), the
Purchase Price for the New Warrants (whether or not the same shall be issued and
outstanding) in effect immediately prior to the issuance of such options, rights
or warrants, or such convertible or exchangeable securities, as the case may be,
shall be reduced to a price determined by making the computation in accordance
with the provisions of Section 8(a) hereof, provided that:
(1) The aggregate maximum number of shares of Class A Common
Stock issuable or that may become issuable under such options, rights or
warrants (assuming exercise in full even if not then currently exercisable or
currently exercisable in full) shall be deemed to be issued and outstanding at
the time such options, rights or warrants were issued, for a consideration equal
to the minimum purchase price per share provided for in such options, rights or
warrants at the time of issuance, plus the consideration, if any, received by
the Company for such options, rights or warrants; provided, however, that upon
the expiration or other termination of such options, rights or warrants, the
number of shares of Class A Common Stock deemed to be issued and outstanding
pursuant to this subsection (1) (and for the purposes of subsection (5) of
Section 8(a)) shall be reduced by the number of shares as to which options,
warrants or rights have expired, and such number of shares shall no longer be
deemed to be issued and outstanding, and the Purchase Price then in effect shall
forthwith be readjusted and thereafter be the price that it would have been had
adjustment been made on the basis of the issuance only of the shares actually
issued plus the shares remaining issuable upon the exercise of those options,
rights or warrants as to which the exercise rights shall not have expired or
terminated unexercised.
(2) The aggregate maximum number of shares of Class A Common
Stock issuable or that may become issuable upon conversion or exchange of any
convertible or exchangeable securities (assuming conversion or exchange in full
even if not then currently convertible or exchangeable in full) shall be deemed
to be issued and outstanding at the time of issuance of such securities, for a
consideration equal to the consideration received by the Company for such
securities, plus the minimum consideration, if any, receivable by the Company
upon the conversion or exchange thereof; provided, however, that upon the
termination of the right to convert or exchange such convertible or exchangeable
securities (whether by reason of redemption or otherwise), the number of shares
of Class A Common Stock deemed to be issued and outstanding pursuant to this
subsection (2) (and for the purposes of subsection (5) of Section 8(a)) shall be
reduced by the number of shares as to which the conversion or exchange rights
shall have expired or terminated unexercised, and such number of shares shall no
longer be deemed to be issued and outstanding, and the Purchase Price then in
effect shall forthwith be readjusted and thereafter be the price that it would
have been had adjustment been made on the basis of the issuance only of the
shares actually issued plus the shares remaining issuable upon conversion or
exchange of those convertible or exchangeable securities as to which the
conversion or exchange rights shall not have expired or terminated unexercised.
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(3) If any change shall occur in the price per share provided
for in any of the options, rights or warrants referred to in subsection (1) of
this Section 8(c), or in the price per share or ratio at which the securities
referred to in subsection (2) of this Section 8(c) are convertible or
exchangeable, such options, rights or warrants, or conversion or exchange
rights, as the case may be, to the extent not theretofore exercised, shall be
deemed to have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the exercise
or conversion or exchange thereof, and the Company shall be deemed to have
issued upon such date new options, rights or warrants, or convertible or
exchangeable securities.
(d) In case of any reclassification or change of outstanding shares of
Class A Common Stock issuable upon exercise of the New Warrants (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), or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a Subsidiary in which merger the Company is the surviving
corporation and which does not result in any reclassification or change of the
then outstanding shares of Class A Common Stock or other capital stock issuable
upon the exercise of the New Warrants (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
subdivision or combination)) or in case of any sale or conveyance to another
corporation of the property of the Company as an entity, then, as a condition of
such reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate provision whereby the Registered Holder of each New
Warrant then outstanding shall have the right thereafter to receive on exercise
of such New Warrant the kind and amount of securities and property receivable
upon such reclassification, change, consolidation, merger, sale or conveyance by
a holder of the number of securities issuable upon the exercise of such New
Warrant immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance and shall forthwith file at the Corporate Office of
the Warrant Agent a statement signed by its President or a Vice President and by
its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary evidencing such provision. Such provisions shall include a provision
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Sections 8(a) and 8(b). The above provisions of this
Section 8(d) shall similarly apply to successive reclassifications and changes
of shares of Class A Common Stock and to successive consolidations, mergers,
sales or conveyances.
(e) Irrespective of any adjustments or changes in the Purchase Price or
the number of shares of Class A Common Stock purchasable upon exercise of the
New Warrants, the Warrant Certificates theretofore and thereafter issued shall,
unless the Company shall exercise its option to issue new Warrant Certificates
pursuant to Section 2(c), continue to express the Purchase Price per share and
the number of shares purchasable thereunder as the Purchase Price per share.
(f) After each adjustment of the Purchase Price pursuant to this
Section 8, the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Purchase Price as so adjusted; (ii) the number of shares of Class A Common Stock
purchasable upon exercise of each New Warrant, after such adjustment; and (iii)
a brief statement of the facts accounting for such adjustment. The Company will
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promptly file such certificate with the Warrant Agent and cause a brief summary
thereof to be sent by ordinary first class mail to each Registered Holder at his
last address as it shall appear on the registry books of the Warrant Agent. No
failure to mail such notice nor any defect therein or in the mailing thereof
shall affect the validity thereof except as to the Registered Holder to whom the
Company failed to mail such notice, or except as to the Registered Holder whose
notice was defective. The affidavit of an officer of the Warrant Agent or the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(g) No adjustment of the Purchase Price shall be made as a result of or
in connection with (i) the issuance of shares of Class A Common Stock underlying
the New Warrants or underlying any rights, warrants, options or convertible or
exchangeable securities outstanding on the date hereof, or (ii) the issuance or
sale of shares of Class A Common Stock if the amount of said adjustment shall be
less than $.10; provided, however, that in such case, any adjustment that would
otherwise be required to be made shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment that shall amount,
together with any adjustment so carried forward, to at least $.10. In addition,
Registered Holders shall not be entitled to cash dividends paid by the Company
prior to the exercise of any New Warrant held by them.
(h) "Fair Market Value" shall mean the value of a share of Class A
Common Stock as determined in accordance with the following provisions:
(1) If the Class A Common Stock is listed or admitted to
unlisted trading privileges on the NYSE or the AMEX or is traded on the NNM, the
Fair Market Value of a share of Class A Common Stock shall be equal to the
average of the closing sale price of the Class A Common Stock during the thirty
(30) trading days immediately preceding the date of the event which requires the
determination or Fair Market Value on whichever of such exchanges or the NNM had
the highest daily trading volume for the Class A Common Stock during such thirty
(30) day trading period.
(2) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on either the NYSE or the AMEX and is not traded on
the NNM, but is quoted or reported on Nasdaq, the Fair Market Value of a share
of Class A Common Stock shall be the average of the last reported closing bid
and asked prices (or the last sale price, if then reported on Nasdaq) of the
Class A Common Stock during the thirty (30) trading days immediately preceding
the date of event which requires the determination of Fair Market Value.
(3) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on either of the NYSE or the AMEX and is not traded
on the NNM or quoted or reported on Nasdaq, but is listed or admitted to
unlisted trading privileges on the BSE or another national securities exchange
(other than the NYSE or the AMEX), the Fair Market Value of a share of Class A
Common Stock shall be the average of the closing sale price of the Class A
Common Stock during the thirty (30) trading days immediately preceding the date
of the event which requires the determination of Fair Market Value.
(4) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on any national securities exchange, or listed for
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trading on the NNM or quoted or reported on Nasdaq, but is traded in the
over-the-counter market, the Fair Market Value of a share of Class A Common
Stock shall be the average of the last reported bid and asked prices of the
Class A Common Stock reported by the National Quotation Bureau, Inc. for the
thirty (30) trading days immediately preceding the date of the event which
requires the determination of Fair Market Value.
(5) If the Class A Common Stock is not listed or admitted to
unlisted trading privileges on any national securities exchange, or listed for
trading on the NNM or quoted or reported on Nasdaq, and bid and asked prices of
the Class A Common Stock are not reported by the National Quotation Bureau,
Inc., the Fair Market Value of a share of Class A Common Stock shall be an
amount, not less than the book value as of the end of the most recently
completed fiscal quarter of the Company ending prior to the date requiring a
determination of Fair Market Value, determined in accordance with general
accepted accounting principles, consistently applied.
Section 9. Redemption.
(a) Commencing on the Initial Warrant Redemption Date, the Company may,
on 30 days' prior written notice redeem all of the New Warrants at five cents
($.05) per warrant; provided, however, that before any such call for redemption
of the New Warrants can take place the closing sale price of the Class A Common
Stock as quoted on Nasdaq or, if such shares are not quoted on Nasdaq, on the
principal market on which such shares shall then be trading, shall have, for
each of the twenty (20) consecutive trading days ending on the tenth (10th) day
prior to the date on which the notice contemplated by (b) and (c) below is
given, equaled or exceeded $12.00 per share (subject to adjustment in the event
of any stock splits or other similar events as provided in Section 8 hereof).
(b) The notice of redemption shall specify (i) the redemption price,
(ii) the date fixed for redemption, that shall in no event be less than thirty
(30) days after the date of mailing of such notice, (iii) the place where the
Warrant Certificate shall be delivered and the redemption price shall be paid,
and (iv) that the right to exercise the New Warrant shall terminate at 5:00 p.m.
(New York time) on the business day immediately preceding the date fixed for
redemption. The date fixed for the redemption of the New Warrants shall be the
"Redemption Date." No failure to mail such notice nor any defect therein or in
the mailing thereof shall affect the validity of the proceedings for such
redemption except as to a holder (a) to whom notice was not mailed, or (b) whose
notice was defective. An affidavit of the Warrant Agent or the Secretary or
Assistant Secretary of the Company that notice of redemption has been mailed
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
(c) Any right to exercise a New Warrant shall terminate at 5:00 p.m.
(New York time) on the business day immediately preceding the Redemption Date.
The redemption price payable to the Registered Holders shall be mailed to such
persons at their addresses of record.
(d) The Company shall as soon as practicable after the Redemption Date,
and in any event within 15 months thereafter, make generally available to its
shareholders (within the meaning of Rule 158 under the Act) an earnings
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statement covering a period of at least 12 consecutive months from the
Redemption Date that complies with Section 11(a) of the Act.
Section 10. Concerning the Warrant Agent.
(a) The Warrant Agent acts hereunder as agent and in a ministerial
capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and delivering
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to the validity, value or authorization of the Warrant
Certificates or the New Warrants represented thereby or of any securities or
other property delivered upon exercise of any warrant or whether any stock
issued upon exercise of any warrant is fully paid and nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or
responsibility to any warrantholder to make or cause to be made any adjustment
of the Purchase Price as provided in this Agreement, or to determine whether any
fact exists which may require such adjustment, or with respect to the nature or
extent of such adjustment, when made, or with respect to the method employed in
making the same. It shall not (i) be liable for any recital or statement of fact
contained herein or for any action taken, suffered or omitted by it in reliance
on any Warrant Certificate or other document or instrument believed in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in any Warrant Certificate, or (iii) be liable for any act or omission in
connection with this Agreement except for its own gross negligence or willful
misconduct.
(c) The Warrant Agent may at any time consult with counsel satisfactory
to it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
(d) Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed by
the Chairman, President or any Vice President (unless other evidence in respect
thereof is herein specifically prescribed). The Warrant Agent shall not be
liable for any action taken, suffered or omitted by it in accordance with such
notice, statement, instruction, request, direction, order or demand.
(e) The Company agrees to pay the Warrant Agent reasonable compensation
for its services and to reimburse it for its reasonable expenses; the Company
further agrees to indemnify the Warrant Agent and save it harmless against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for anything done or omitted by the Warrant Agent in the execution of its
duties and powers hereunder except losses, expenses and liabilities arising as a
result of the Warrant Agent's gross negligence or willful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own gross negligence or willful misconduct), after giving
30 days' prior written notice to the Company. At least 15 days prior to the date
such resignation is to become effective, the Warrant Agent shall cause a copy of
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such notice of resignation to be mailed to the Registered Holder of each Warrant
Certificate at the Company's expense. Upon such resignation the Company shall
appoint in writing a new warrant agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in writing of
such resignation by the resigning Warrant Agent, then the Registered Holder of
any Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a bank or trust company having a
capital and surplus, as shown by its last published report to its stockholders,
of not less than $10,000,000 or a stock transfer company doing business in New
York. After acceptance in writing of such appointment by the new warrant agent
is received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the warrant agent, without any further assurance, conveyance, act or
deed; but if for any reason it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed and
delivered by the resigning Warrant Agent. Not later than the effective date of
any such appointment the Company shall file notice thereof with the resigning
Warrant Agent and shall forthwith cause a copy of such notice to be mailed to
the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent or any new warrant
agent may be converted or merged, any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any new warrant agent shall be a successor warrant agent under
this Agreement without any further act, provided that such corporation is
eligible for appointment as successor to the Warrant Agent under the provisions
of the preceding paragraph. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed to the Company and
to the Registered Holders of each Warrant Certificate.
(h) The Warrant Agent, its Subsidiaries and affiliates, and any of its
or their officers or directors, may buy and hold or sell the New Warrants or
other securities of the Company and otherwise deal with the Company in the same
manner and to the same extent and with like effect as though it were not the
Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
(i) The Warrant Agent shall retain for a period of two years from the
date of exercise any Warrant Certificate received by it upon such exercise.
Section 11. Modification of Agreement.
The Warrant Agent and the Company may by supplemental agreement make
any changes or corrections in this Agreement: (i) that they shall deem
appropriate to cure any ambiguity or to correct any defective or inconsistent
provision; or (ii) that they may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates; provided,
however, that this Agreement shall not otherwise be modified, supplemented or
altered in any respect except with the consent in writing of the Registered
Holders representing not less that 66-2/3% of the New Warrants then outstanding;
-14-
provided, further, that no change in the number or nature of the securities
purchasable upon the exercise of any New Warrant, or to increase the Purchase
Price therefor, shall be made without the consent in writing of the Registered
Holder of the Warrant Certificate other than such changes as are specifically
prescribed by this Agreement as originally executed.
Section 12. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid, or delivered to a telegraph office for
transmission if to the Registered Holder of a Warrant Certificate, at the
address of such holder as shown on the registry books maintained by the Warrant
Agent; if to the Company at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx X, Xxxxxxx,
Xxxxxxx 00000, Attention: Secretary, or at such other address as may have been
furnished to the Warrant Agent in writing by the Company; and if to the Warrant
Agent, at its Corporate Office.
Section 13. Binding Effect.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to conflicts of laws.
Section 14. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
Company, the Warrant Agent and their respective successors and assigns and the
holders from time to time of Warrant Certificates or any of them. Except as
hereinafter stated, nothing in this Agreement is intended or shall be construed
to confer upon any other person any right, remedy or claim or to impose upon any
other person any duty, liability or obligation.
Section 15. Counterparts.
This Agreement may be executed in several counterparts, which taken
together shall constitute a single document.
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
[SEAL]
ROLLING PIN KITCHEN EMPORIUM, INC
By: _______________________________
Xxxx X. Xxxxxxx, President
CONTINENTAL STOCK TRANSFER AND
TRUST COMPANY, as Warrant Agent
By: _______________________________
-16-
EXHIBIT A
No. W________ VOID AFTER October 30, 1999
______ WARRANTS
REDEEMABLE WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF CLASS A COMMON STOCK
ROLLING PIN KITCHEN EMPORIUM, INC.
CUSIP ______
THIS CERTIFIES THAT, FOR VALUE RECEIVED ____________________or its registered
assigns (the "Registered Holder") is the owner of the number of redeemable
warrants (the "Warrants") specified above. Each Warrant initially entitles the
Registered Holder to purchase, subject to the terms and conditions set forth in
this Certificate and the Warrant Agreement (as hereinafter defined), one fully
paid and nonassessable share of Class A Common Stock, par value $.01 per share,
of Rolling Pin Kitchen Emporium, Inc., a Delaware corporation (the "Company"),
at any time between February 12, 1999 (the "Initial Warrant Exercise Date"), and
the Expiration Date (as hereinafter defined) upon the presentation and surrender
of this Warrant Certificate with the Subscription Form on the reverse hereof
duly executed, at the corporate office of Continental Stock Transfer and Trust
Company, 0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Warrant Agent, or its
successor (the "Warrant Agent"), accompanied by payment of $11.57 per share
subject to adjustment (the "Purchase Price"), in cash or by certified or bank
check made payable to the Warrant Agent for the account of the Company.
This Warrant Certificate and each Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement, dated November __, 1998, by and
between the Company and the Warrant Agent (the "Warrant Agreement").
In the event of certain contingencies provided for in the
Warrant Agreement, the Purchase Price and the number of shares of Class A Common
Stock subject to purchase upon the exercise of each Warrant represented hereby
are subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional interests will be issued. In the
case of the exercise of less than all of the Warrants represented hereby, the
Company shall cancel this Warrant Certificate upon the surrender hereof and
shall execute and deliver a new Warrant Certificate or Warrant Certificates of
like tenor, that the Warrant Agent shall countersign, for the balance of such
Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York
time) on October 30, 1999. If such date shall in the State of New York be a
holiday or a day on which the banks are authorized to close, then the Expiration
Date shall mean 5:00 p.m. (New York time) the next business day.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of this Warrant unless a registration statement under
the Securities Act of 1933, as amended (the "Act"), with respect to such
securities is effective or an exemption thereunder is available. The Company has
covenanted and agreed that it will file a registration statement under the
federal securities laws, use its best efforts to cause the same to become
effective, use its best efforts to keep such registration statement current, if
required under the Act, while any of the Warrants are outstanding, and deliver a
prospectus which complies with Section 10(a)(3) of the Act to the Registered
Holder exercising this Warrant. This Warrant shall not be exercisable by a
Registered Holder in any state where such exercise would be unlawful.
Notwithstanding any other provision hereof, this Warrant shall
not be transferable until the Initial Warrant Exercise Date.
This Warrant Certificate is exchangeable, upon the surrender
hereof by the Registered Holder at the corporate office of the Warrant Agent,
for a new Warrant Certificate or Warrant Certificates of like tenor representing
an equal aggregate number of Warrants, each new Warrant Certificate shall
represent the number of Warrants as designated by the Registered Holder at the
time of the surrender. Upon due presentment and payment of any tax or other
charge imposed in connection therewith or incident thereto, for registration of
transfer of this Warrant Certificate at such office, a new Warrant Certificate
or Warrant Certificates representing an equal aggregate number of Warrants will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Subject to the provisions of the Warrant Agreement, this
Warrant may be redeemed at the option of the Company, at a redemption price of
$.05 per Warrant, at any time commencing on April 1, 1999, provided that the
closing sale price for the Common Stock as reported by Nasdaq or, if such shares
are not quoted on Nasdaq, on the principal market on which such shares shall
then be trading, shall have equaled or exceeded for each of the twenty (20)
consecutive trading days ending on the tenth (10) day prior to the Notice of
Redemption, as defined below, $12.00 per share (subject to adjustment in the
event of any stock splits or other similar events). Notice of redemption (the
"Notice of Redemption") shall be given not later than 30 days prior to the date
fixed for redemption, all as provided in the Warrant Agreement. On and after the
close of business on the day immediately preceding the date fixed for
redemption, the Registered Holder shall have no rights with respect to the
Warrants except to receive the $.05 per Warrant upon surrender of this Warrant
Certificate.
Prior to due presentment for registration of transfer hereof,
the Company and the Warrant Agent may deem and treat the Registered Holder as
the absolute owner hereof and of each Warrant represented hereby
(notwithstanding any notations of ownership or writing made by anyone other than
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a duly authorized officer of the Company or the Warrant Agent) for all purposes
and shall not be affected by any notice to the contrary, except as provided in
the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of laws.
This Warrant Certificate is not valid unless countersigned by
the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed, manually or in facsimile by two of its officers
thereunto duly authorized and a facsimile of its corporate seal to be imprinted
hereon.
Dated: _________, 1998
[SEAL] ROLLING PIN KITCHEN EMPORIUM, INC.
By: ______________________________
President
By: ______________________________
Secretary
COUNTERSIGNED:
CONTINENTAL STOCK TRANSFER AND
TRUST COMPANY as Warrant
Agent
By: ______________________________
Name: _____________________________
Title: ____________________________
-3-
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(please print or type name and address)
and be delivered to
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
Dated: _____________________________ X __________________________________
__________________________________
__________________________________
Address
__________________________________
Social Security or Taxpayer
Identification Number
__________________________________
Signature Guaranteed
__________________________________
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, _______________________, hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(please print or type name and address)
____________________ of the Warrants represented by this Warrant Certificate,
and hereby irrevocably constitutes and appoints ________________________________
Attorney to transfer this Warrant Certificate of the Company, with full power of
substitution in the premises.
Dated: _____________________________ X __________________________________
__________________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST
CORRESPOND TO THE NAME AS WR1TTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND
MUST BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
CONTINENTAL STOCK EXCHANGE, PACIFIC STOCK EXCHANGE, MIDWEST STOCK EXCHANGE OR
BOSTON STOCK EXCHANGE.
