Void after June 30, 2003
This Warrant and any shares acquired upon the exercise of this Warrant
have not been registered under the Securities Act of 1933. This Warrant and such
shares may not be sold or transferred in the absence of such registration or an
exemption therefrom under said Act and no transfer of this Warrant or such
shares shall be valid or effective unless and until such conditions shall have
been complied with.
HOME RETAIL HOLDINGS, INC.
COMMON STOCK PURCHASE WARRANT
HOME RETAIL HOLDINGS, INC. (the "Company"), having its
principal office at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 hereby certifies
that, for value received, Liberty BIDCO Investment Corporation, a Michigan
corporation, or assigns, is entitled, subject to the terms set forth below, to
purchase from the Company at any time on or from time to time after August 12,
1998 and before 5:00 P.M., New York City time, on June 30, 2003 (the "Expiration
Date") 92,595 fully paid and non-assessable shares of Common Stock of the
Company, at the price per share of $.01. The number and character of such shares
of Common Stock and the Purchase Price as hereinafter defined are subject to
adjustment as provided herein.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants") originally issued to Liberty BIDCO Investment Corporation as of the
Original Issue Date (as defined below) and evidencing the right to purchase an
aggregate of 92,595 shares of Common Stock of the Company (representing
approximately 5% of the Company's Common Stock and Class B Common Stock on a
fully diluted basis as of the Original Issue Date), subject to adjustment as
provided herein.
As used herein the following terms, unless the context
otherwise requires, have the following respective meanings:
(a) The term "Company" includes any corporation which shall
succeed to or assume the obligations of the Company hereunder.
(b) The term "Common Stock" means the Class A Common Stock,
$.01 par value, of the Company and its successors.
(c) The "Original Issue Date" is August 12, 1998, the date as
of which the Warrant was first issued.
(d) The term "Other Securities" refers to any stock (other
than Common Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any time shall be
entitled to receive, or shall have received, upon the exercise of the Warrant,
in lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of Common
Stock or Other Securities pursuant to Section 6 or otherwise.
(e) The term "Purchase Price" shall be $0.01 per share of
Common Stock subject to adjustment under Section 7.
(f) The terms "registered" and "registration" refer to a
registration effected by filing a registration statement in compliance with the
Securities Act, to permit the disposition of Common Stock (or Other Securities)
issued or issuable upon the exercise of Warrants, and any post-effective
amendments and supplements filed or required to be filed to permit any such
disposition.
(g) The term "Registrable Securities" shall mean the shares of
Common Stock or Other Securities issuable upon exercise of the Warrants,
excluding Common Stock or other Securities that (a) have been registered under
the Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with such registration statement or (b)
are eligible for sale under Rule 144(k) under the Securities Act, or have been
sold pursuant to Rule 144 under the Securities Act.
(h) The term "Registration Period" shall mean the period
commencing on the Original Issue Date and ending on August 12, 2001.
(i) The term "Securities Act" means the Securities Act of 1933
as the same shall be in effect at the time.
(j) The term "Plan" shall mean the Amended Plan of
Reorganization of the Company, The Cookstore, Inc. and The Cookstore
Worthington, Inc. dated June 24, 1998, as modified.
1. Registration Rights.
1.1. Incidental Registration. During the Registration Period,
each holder of Registrable Securities will have a right to have its Registrable
Securities included in registration statements filed by the Company on general
registration forms under the Securities Act, except as otherwise provided
herein. The Company will notify each such holder in writing (the "Company
Notice") promptly after making the decision to file a registration statement
under the Securities Act with respect to the proposed sale of the Company's
equity securities (except with respect to registration statements filed on Forms
S-4 or S-8 or such others in similar form then in effect under the Securities
Act), specifying in the Company Notice the form of registration statement, the
number of shares of securities the Company proposes to register, the name of the
managing underwriter or underwriters (if any) and the general terms and
conditions of the proposed registration and sale. Subject to Section 1.6 and the
remainder of this Section 1.1, if requested by any holder of Registrable
Securities in a writing (the "Investor Notice"), delivered to the Company not
later than 30 days after the Company gives the Company Notice, to include in
such registration statement Registrable Securities (the "Requested Shares"), the
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Company will use its best efforts to include the Requested Shares in the
registration statement, and, if the proposed sale is to be underwritten, to
cause the underwriters of securities to be sold by the Company in such
registration statement to purchase such Requested Shares. In the event that any
registration pursuant to this Section 1.1 shall be an underwritten offering of
securities of the Company, any request by such holders pursuant to this Section
1.1 to register the Requested Shares, may, but need not, specify that such
shares are to be included in the underwriting on the same terms and conditions
as the securities, if any, otherwise being sold through underwriters under such
registration. In the event of an underwritten offering by the Company, such
notice shall also specify as to whether such holder of Registrable Securities
desires that any of such Requested Shares to be included in any such
registration statement be subject to any over-allotment option granted the
underwriters of such offering. No holder shall be required to have its Requested
Shares be part of any underwritten offering and/or subject to any over-allotment
option granted any underwriter by the Company. Notwithstanding the foregoing, if
the managing underwriter or underwriters shall inform the Company of its
opinion, at least 15 days prior to the date that the registration statement
becomes effective, that part or all the Requested Shares be excluded from the
registration statement on the ground that the inclusion of such Requested Shares
will materially adversely affect the orderly sales and distribution of the
Common Stock being sold, the Company shall include first all securities to be
sold by the Company for its own account and all shares of Class A Common Stock,
if any, that are held by holders of Allowed Claims in Class 6 (as such terms
defined in the Plan) and that are required to be included in such registration
statement pursuant to the Plan; second, Requested Shares; and last, securities
held by other persons that have the right to require that their securities be
included in the registration, in each case, on a pro rata basis. If the
underwriters agree to purchase any of the Requested Shares beneficially owned by
any holder who has agreed that such Requested Shares shall be sold pursuant to
the underwritten offering or pursuant to the exercise of any over-allotment
option as described above, such holders will enter into an underwriting
agreement with the underwriters and will sell such Requested Shares to the
underwriters unless, and except to the extent that, upon written notice to the
Company and the managing underwriter or underwriters at least two days prior to
the effective date of the registration statement, any such holder withdraws any
portion of such Requested Shares. If the underwriters elect to purchase less
than all the Requested Shares beneficially owned by holders who have agreed that
such Requested Shares shall be sold pursuant to the underwritten offering or
pursuant to the exercise of any over-allotment option, the underwriters shall
purchase such Requested Shares on a pro rata basis among the Requested Shares
that were included in the timely requests from holders of Registrable Securities
under this subsection. Notwithstanding the foregoing, the Company may withdraw
any registration statement referred to in this Section 1 without any liability
to the holders of Registrable Securities.
1.2. Market Standoff. Each holder of Registrable Securities
agrees that if the managing underwriter or underwriters of the offering
contemplated by Section 1.1 so request, such holder shall not effect any public
sale or distribution of any Registrable Securities being registered thereunder
or of any securities convertible into or exchangeable or exercisable for such
Registrable Securities being registered thereunder for a period equal to the
lesser of (x) the period management of the Company has agreed to lockup and (y)
90 days after the effective date of the registration statement filed in
connection with the public offering.
1.3. Obligations of the Company. When required under Section
1.1 to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as is reasonably possible:
3
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to exercise the Company's best efforts to cause
such registration statement to become effective at the earliest practicable date
and to remain effective for a period of 90 days or until the holders and any
underwriter purchasing such Registrable Securities have sold or otherwise
disposed of the Registrable Securities registered in such registration
statement, whichever is earlier.
(b) Furnish to each holder selling Registrable
Securities such number of copies of conformed copies of such registration
statement and of each such amendment and supplement thereto (with all exhibits)
and such number of copies of the prospectus, including a preliminary prospectus,
in conformity with the requirements of the Securities Act, and such other
documents as such holder may reasonably request in order to facilitate the
disposition of Registrable Securities to be sold by such holder pursuant to such
registration statement.
(c) Exercise the Company's best efforts to register
and qualify the Registrable Securities covered by such registration statement
under other securities laws or State Securities Laws of such states or
jurisdictions where a self-executing exemption is not available and as any
seller of such Registrable Securities shall reasonably request, but in any event
no fewer than five such states or jurisdictions; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions (for purposes of this Warrant, the Form U-2
Uniform Consent to Service of Process in effect on the Original Issue Date shall
not constitute general consent to service of process).
(d) Cause all securities covered by such registration
statement to be registered with or approved by such other federal or state
governmental agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the seller or sellers of securities to
enable the seller or sellers thereof to consummate the disposition of such
securities.
(e) Notify each seller of securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, and at the request of any such seller
promptly prepare and furnish to it a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading in the light of the circumstances under which they were made.
(f) Comply with all applicable rules and regulations
of the SEC, and make available to its securities holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first full
calendar month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and promptly furnish to each
such seller of securities a copy of such earnings statement.
4
(g) Use its best efforts to list all securities
covered by such registration statement on any national securities exchange on
which securities of the same class and, if applicable, series, covered by such
registration statement are then listed or on the Nasdaq Small Cap Market
("Nasdaq") if the securities are reported on Nasdaq.
1.4. Information to be Furnished. It shall be a condition
precedent to the obligation of the Company to take any action pursuant to this
Section 1 that the holders of Registrable Securities promptly furnish to the
Company such information regarding them, the securities of the Company held by
them and the intended method of disposition of such securities as the Company
shall reasonably request and as shall be required in connection with the
Company's obligations under this Section 1.
1.5. Underwritten Offerings.
(a) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 1.1 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities, use its best efforts to arrange for such underwriters
to include all the securities to be offered and sold by such requesting holder
among the securities of the Company to be distributed by such underwriters. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such requesting holder of Registrable
Securities shall not be required to make any representations or warranties to or
agreements with the Company other than representations, warranties or agreements
regarding such holder, such holder's securities and such holder's intended
method of distribution or any other representations required by applicable law.
1.6. Notice. In connection with the preparation and filing of
each registration statement under the Securities Act pursuant to this Agreement,
the Company shall promptly notify the holders of Registrable Securities included
in the Registration Statement and their respective counsel of any stop order
issued or threatened by the SEC and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
1.7. Registration Expenses. All expenses incurred by the
Company and the holders of Registrable Securities in complying with this Section
1, including, without limitation, all registration, NASD and filing fees,
duplication and printing expenses, travel expenses, fees and disbursements of
5
counsel for the Company or its independent public accountants, reasonable fees
and disbursements of counsel for holders of securities included in a Company
registration statement and the expense of any special audits incident to or
required by any such registration shall be paid by the Company, except that each
holder of Registrable Securities shall pay underwriting discounts and
commissions attributable to such holder's shares, and transfer taxes on shares
held by such holder.
1.8. Indemnification. In the event any of the Common Stock of
a holder of Registrable Securities is included in a registration statement
pursuant to this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each holder of Registrable Securities (and its
officers, directors, employees, partners and affiliates) selling Registrable
Securities, any underwriter (as defined in the Securities Act) with respect to
the Registrable Securities, and each person, if any, who controls such holder or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, to which they may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue or allegedly untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or allegedly necessary to make the statements
therein not misleading; and will reimburse each such holder of Registrable
Securities (and its officers, directors, employees, partners and affiliates),
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 1.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the written consent of the Company, which shall
not be unreasonably withheld, nor shall the Company be liable under this Section
1.8(a) to such a holder, underwriter or controlling person for any such loss,
claim, damage, liability or action to the extent that it arises out of, or is
based upon, an untrue statement or allegedly untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or supplements thereto,
in reliance upon and in conformity with information furnished in writing
expressly for use in connection with such registration by such holder, such
underwriter or such controlling person.
(b) To the extent permitted by law, each holder
selling Registrable Securities pursuant to this Section 1 will indemnify and
hold harmless the Company, each of its directors, officers and employees, each
person, if any, who controls the Company within the meaning of the Securities
Act, and any underwriter for the Company (within the meaning of the Securities
Act) against any losses, claims, damages or liabilities to which the Company or
any such person or underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of, or are based upon, any untrue or allegedly untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
6
stated therein or allegedly necessary to make the statements therein not
misleading, in each case to the extent that such untrue statement or allegedly
untrue statement or omission or alleged omission was made in such registration
statement, preliminary prospectus, or amendments or supplements thereto in
reliance upon and in conformity with information furnished in writing by such
holder expressly for use in connection with such registration; provided,
however, that the indemnity agreement contained in this Section 1.8(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the written consent of such
holder, which shall not be unreasonably withheld; and each such holder will
reimburse the Company or any such person or underwriter for any legal or other
expenses reasonably incurred by the Company or any such person or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party
under this Section 1.8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.8, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided that
each indemnified party shall have the right to employ its own counsel in any
such case, but the fees and expense of such counsel shall be at the expense of
such indemnified party unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense
of such action or the indemnifying party shall not have employed counsel to have
charge of the defense of such action or such indemnified party or the
indemnified parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to those available
to the indemnifying party (in which case the indemnifying party shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties) in any of which events the fees and expenses of such counsel
shall be borne by the indemnifying parties. The failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under this Section 1.8, except to the extent that the
indemnifying party is actually and materially prejudiced by such failure to give
notice.
2. Sale or Exercise Without Registration. If, at the time of
any exercise, transfer or surrender for exchange of a Warrant or Common Stock
(or Other Securities) previously issued upon the exercise of Warrants, such
Warrant or Common Stock (or Other Securities) shall not be registered under the
Securities Act and any applicable state securities laws, the Company may
require, as a condition of allowing such exercise, transfer or exchange, that
the holder or transferee of such Warrant or Common Stock (or Other Securities),
as the case may be, furnish to the Company a satisfactory opinion of counsel to
the effect that such exercise, transfer or exchange may be made without
registration under the Securities Act and any applicable state securities laws,
provided that nothing contained in this Section 2 shall relieve the Company from
complying with any request for registration pursuant to Section 1 hereof.
3. Exercise of Warrant; Partial Exercise; Cashless Exercise;
Redemption.
3.1. Exercise in Full. Subject to the provisions hereof, this
Warrant may be exercised in full by the holder hereof by surrender of this
Warrant, with the form of subscription attached hereto as Schedule I
("Subscription Form") duly executed by such holder, to the Company at its
principal office accompanied by payment, in cash or by certified or official
bank check payable to the order of the Company, in the amount obtained by
multiplying the number of shares of Common Stock called for on the face of this
Warrant, as adjusted herein, by the Purchase Price.
7
3.2. Partial Exercise. Subject to the provisions hereof, this
Warrant may be exercised in part by the holder hereof by surrender of this
Warrant in the manner and at the place provided in Section 3.1 except that the
amount payable by the holder upon any partial exercise shall be the amount
obtained by multiplying (a) the number of shares of Common Stock, as adjusted
herein, designated by the holder in the Subscription Form, by (b) the Purchase
Price. Upon any such partial exercise, the Company at its expense will forthwith
issue and deliver to or upon the order of the holder hereof a new Warrant or
Warrants of like tenor, in the name of the holder hereof or as such holder (upon
payment by such holder of any applicable transfer taxes) may request, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock equal (without giving effect to any adjustment therein) to the number of
such shares called for on the face of this Warrant minus the number of such
shares designated by the holder in the Subscription Form.
3.3. Exercise by Surrender of Warrant. In addition to the
method of payment set forth in Sections 3.1 and 3.2 and in lieu of any cash
payment required thereunder, the holder of the Warrant shall have the right at
any time and from time to time to exercise the Warrants in full or in part by
surrendering the Warrant Certificate in the manner and at the place specified in
Section 3.1 as payment of the aggregate Purchase Price. The number of shares
subject to the portion of the Warrant to be surrendered in payment of the
aggregate Exercise Price for the shares to be purchased shall be determined by
multiplying the number of shares to be purchased by the Purchase Price, and then
dividing the product thereof by an amount equal to the Market Price (as defined
below). Upon any such partial exercise, the Company, at its expense will
forthwith issue and deliver to or upon the order of the holder hereof a new
Warrant of like tenor, in the name of such holder or as such holder may
designate (upon payment by such holder of any applicable transfer taxes),
calling in the aggregate on the face thereof for the number of shares of Common
Stock equal (without giving effect to any adjustment therein) to (A) the number
of shares called for on the face of this Warrant minus (B) the sum of (i) the
number of shares so surrendered by the holder pursuant to this Section plus (ii)
the number of shares issued in the exchange. Solely for the purposes of this
paragraph, Market Price shall be calculated as the average of the Market Prices
for each of the ten (10) trading days preceding the date which the form of
election attached hereto is deemed to have been sent to the Company ("Notice
Date").
3.4. Definition of Market Price. As used herein, the phrase
"Market Price" at any date shall be deemed to be (i) if the principal trading
market for such securities is an exchange, the last reported sale price, as
officially reported on any consolidated tape, (ii) if the principal market for
such securities is the over-the-counter market, the closing bid price on such
date as reported by Nasdaq or, if there is no closing bid price reported on
Nasdaq or if the security is not quoted on Nasdaq, then the high bid price as
set forth in the National Quotation Bureau sheet listing such securities for
such day. Notwithstanding the foregoing, if there is no reported closing price
or high bid price, as the case may be, on the date next preceding the event
requiring an adjustment hereunder, then the Market Price shall be determined as
of the latest date prior to such day for which such closing price or high bid
price is available, or if the securities are not quoted on Nasdaq, as determined
in good faith by resolution of the Board of Directors of the Company, based on
the best information available to it.
8
3.5. Company to Reaffirm Obligations. The Company will, at the
time of any exercise of this Warrant, upon the request of the holder hereof,
acknowledge in writing its continuing obligation to afford to such holder any
rights (including, without limitation, any right to registration of the shares
of Common Stock or Other Securities issued upon such exercise) to which such
holder shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant, provided that if the holder of this Warrant shall
fail to make any such request, such failure shall not affect the continuing
obligation of the Company to afford such holder any such rights.
4. Delivery of Stock Certificates, etc., on Exercise. As soon
as practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and non-assessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled upon such
exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current Market Price of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 5 or otherwise.
5. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time after the
Original Issue Date the holders of Common Stock (or Other Securities) shall have
received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive, without
payment therefor
(a) other or additional stock or other securities or
property (other than cash) by way of dividend, or
(b) other or additional (or less) stock or other
securities or property other than by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or similar corporate
rearrangement, then, and in each such case, the holder of this Warrant, upon the
exercise hereof as provided in Section 3, shall be entitled to receive the
amount of stock and other securities and property which such holder would hold
on the date of such exercise if on the Original Issue Date he had been the
holder of record of the number of shares of Common Stock called for on the face
of this Warrant and had thereafter, during the period from the Original Issue
Date to and including the date of such exercise, retained such shares and all
such other or additional (or less) stock and other securities and property
receivable by him as aforesaid during such period, giving effect to all
adjustments called for during such period by Sections 6 and 7 hereof.
9
6. Reorganization, Consolidation, Merger, etc.
In case the Company after the Original Issue Date shall (a)
effect a reorganization, (b) consolidate with or merge into any other person, or
(c) transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, the holder of this Warrant, upon the exercise
hereof as provided in Section 3 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall be entitled to receive (and the Company
shall be entitled to deliver), in lieu of the Common Stock (or Other Securities)
issuable upon such exercise prior to such consummation or such effective date,
the stock and other securities and property (including cash) to which such
holder would have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if such holder had so exercised this
Warrant immediately prior thereto, all subject to further adjustment thereafter
as provided in Sections 5 and 7 hereof.
In case the Company after the Original Issue Date shall (i)
subdivide the outstanding Common Stock, (ii) combine the outstanding Common
Stock into a smaller number of shares, or (iii) issue any Other Securities by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), then the number and kind of shares of Common Stock and/or Other
Securities issuable, at the time of the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
holder of this Warrant after such time shall be entitled to receive upon
exercise of its Warrant the aggregate number and kind of shares of Common Stock
and/or Other Securities which, if its Warrant had been exercised immediately
prior to such time, it would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification, all subject to further adjustment thereafter as provided in
Sections 5 and 7 hereof.
7. Other Adjustments.
7.1. Adjustment of Exercise Price and Number of Shares of
Common Stock Purchasable or Number of Warrants. Prior to the Expiration Date,
the Purchase Price, the number of shares of Common Stock purchasable upon the
exercise of each Warrant and the number of Warrants outstanding are subject to
adjustment from time to time upon the occurrence of any of the events enumerated
in this Section 7. Upon each adjustment of the number of shares of Common Stock
purchasable pursuant hereto, the Purchase Price shall be adjusted by multiplying
the Purchase Price in existence immediately prior to such adjustment by a
fraction, the numerator of which is the total maximum number of Shares of Common
Stock issuable upon exercise of a Warrant prior to such adjustment and the
denominator of which is the total maximum number of Shares of Common Stock
issuable upon exercise of this Warrant after such adjustment, provided that in
no event shall the Purchase Price be less than $.01 per share.
If and whenever after the date hereof the Company shall in any
manner (i) issue or sell any shares of any class of its Common Stock, (ii) grant
any warrants, options or rights to purchase shares of Common Stock ("Options"),
or (iii) issue or sell Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable (any of the matters
referred to in clauses (i), (ii) and (iii) being an "Event"), then the holder of
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this Warrant shall thereafter be entitled to purchase at the Purchase Price
resulting from any such adjustment the number of Shares of Common Stock obtained
by (a) dividing (i) the number of shares purchasable pursuant hereto immediately
prior to such Event (with respect to each class of Common Stock) by (ii) the sum
of the total number of shares of Common Stock and Class B Common Stock
outstanding immediately prior to such Event plus the total maximum number of
shares of Common Stock issuable upon the exercise of any Options or upon the
conversion or exchange of all Convertible Securities, in each case outstanding
immediately prior to such Event, and (b) multiplying the result by the sum of
the total number of shares of Common Stock and Class B Common Stock outstanding
immediately after such Event plus the total maximum number of shares of Common
Stock issuable upon the exercise of any Options or upon the conversion or
exchange of all Convertible Securities, in each case outstanding immediately
after such Event.
7.2. Exceptions. The provisions of Sections 7.1 do not apply
to (i) the exercise of any Warrant, (ii) the exercise of any Option with respect
to which an adjustment shall have been made at the time of the issuance of such
Option pursuant to Section 7.1, (iii) conversion or exchange of any Convertible
Security with respect to which an adjustment shall have been made at the time of
the issuance of such Convertible Security pursuant to Section 7.1, (iv) any
transaction with respect to which an adjustment shall have been made pursuant to
Sections 5 or 6; (v) the issuance or sale of any Options or Convertible
Securities in connection with any future debt financings of $5,000,000 or more
of the Company or any of its subsidiaries; (vi) the issuance or sale of any
Common Stock pursuant to the exercise or conversion of any Option, right or
Convertible Security that was issued on or prior to the Original Issue Date;
(vii) the issuance of shares of Common Stock, Convertible Securities or Options
in connection with mergers or acquisitions that, in the aggregate, does not
reduce the shares of Common Stock purchased and purchasable pursuant to these
Warrants (collectively, "Warrant Shares") to less than 2.6% of the Company's
Common Stock and Class B Common Stock on a fully diluted basis; (viii) the
issuance of shares of Common Stock, Convertible Securities or Options at any
time that the aggregate market value of the Warrant Shares prior to such
issuance (determined by multiplying the average Market Price of the Common Stock
for the 10 business days preceding such issuance by the number of Warrant
Shares) is at least $4,000,000, provided that such issuance does not reduce such
aggregate market value after such issuance (determined by multiplying the
average Market Price of the Common Stock for the 10 business days after such
issuance by the number of Warrant Shares assuming no anti-dilution as a result
of the issuance) to less than $3,500,000; and (ix) any public offering of Common
Stock that results in at least $4,000,000 in net proceeds to the Company.
7.3. Readjustment. If all of the Common Stock or Convertible
Securities deliverable upon exercise of such Options or upon conversion or
exchange of such Convertible Securities has not been issued on or prior to the
date such Options or the conversion rights under such Convertible Securities, as
the case may be, expire, then the number of shares of Common Stock purchased
upon the exercise of this Warrant shall promptly be readjusted to the number
which would then be in effect had the adjustment upon the issuance of such
securities been made on the basis of the actual number of shares of Common Stock
issued upon such exercise, conversion or exchange of such securities. If the
number of shares for which any Option is exercisable or the rate at which any
Convertible Securities are convertible into or exchangeable for Common Stock
shall change (other than under or by reason of provisions designed to protect
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against dilution), the number of shares purchasable upon the exercise of the
Warrant in effect at the time of such event shall promptly be readjusted to the
number of shares which would have been so purchasable at such time had such
Options or Convertible Securities initially been exercisable or convertible into
such changed number of shares.
8. Further Assurances. The Company will take all such action
as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and non-assessable shares of stock upon the exercise of
the Warrants.
9. Accountants' Certificate as to Adjustments. In each case of
any adjustment or readjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of the Warrant, the Company at its
expense will promptly cause the Company's regularly retained auditor to compute
such adjustment or readjustment in accordance with the terms of the Warrant and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based, and the
number of shares of Common Stock outstanding or deemed to be outstanding. The
Company will forthwith mail a copy of each such certificate to the holder of
this Warrant.
10. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a cash dividend
payable out of earned surplus of the Company) or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company, or
(d) any proposed issue or grant by the Company of any
shares of stock of any class or any other securities, or any right or option to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities (other than the issue of Common Stock on the exercise of
the Warrant), then and in each such event the Company will mail or cause to be
mailed to each holder of the Warrant a notice specifying (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up, and
(iii) the amount and character of any stock or other securities, or rights or
options with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed at
least 20 days prior to the date therein specified.
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11. Reservation of Stock, etc., Issuable on Exercise of
Warrants. The Company will at all times reserve and keep available, solely for
issuance and delivery upon the exercise of the Warrant, all shares of Common
Stock (or Other Securities) from time to time issuable upon the exercise of the
Warrant.
12. Listing on Securities Exchanges; Registration. If the
Company at any time shall list any Common Stock on any national securities
exchange and shall register such Common Stock under the Securities Exchange Act
of 1934 (as then in effect, or any similar statute then in effect), the Company
will, at its expense, simultaneously list on such exchange, upon official notice
of issuance upon the exercise of the Warrant, and maintain such listing of all
shares of Common Stock from time to time issuable upon the exercise of the
Warrant; and the Company will so list on any national securities exchange, will
so register and will maintain such listing of, any Other Securities if and at
the time that any securities of like class or similar type shall be listed on
such national securities exchange by the Company.
13. Exchange of Warrants. Subject to the provisions of Section
2 hereof, upon surrender for exchange of the Warrant, properly endorsed, to the
Company, the Company at its own expense will issue and deliver to or upon the
order of the holder thereof a new Warrant or Warrants of like tenor, in the name
of such holder or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock called for on the face or faces
of the Warrant or Warrants so surrendered.
14. Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, upon
surrender and cancellation of the Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
15. Warrant Agent. The Company may, by written notice to each
holder of a Warrant, appoint an agent having an office in New York, New York,
for the purpose of issuing Common Stock (or Other Securities) upon the exercise
of the Warrants pursuant to Section 3, exchanging Warrants pursuant to Section
13, and replacing Warrants pursuant to Section 14, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall
be made at such office by such agent.
16. Negotiability, etc. This Warrant is issued upon the
following terms, to all of which each holder or owner hereof by the taking
hereof consents and agrees:
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(a) subject to the provisions hereof, title to this
Warrant may be transferred by endorsement (by the holder hereof executing the
form of assignment attached hereto as Schedule II) and delivery in the same
manner as in the case of a negotiable instrument transferable by endorsement and
delivery;
(b) subject to the foregoing, any person in
possession of this Warrant properly endorsed is authorized to represent himself
as absolute owner hereof and is empowered to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior taker or owner waives and renounces all of his equities or rights in this
Warrant in favor of each such bona fide purchaser and each such bona fide
purchaser shall acquire absolute title hereto and to all rights represented
hereby; and
(c) until this Warrant is transferred on the books of
the Company, the Company may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the contrary.
17. Notices, etc. All notices and other communications from
the Company to the holder of this Warrant shall be mailed by first class
registered or certified mail, postage prepaid, at such address as may have been
furnished to the Company in writing by such holder, or, until an address is so
furnished, to and at the address of the last holder of this Warrant who has so
furnished an address to the Company.
18. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant is being delivered in the State of Ohio
and shall be construed and enforced in accordance with and governed by the laws
of such State. The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof.
19. Assignability. Subject to the transfer conditions referred
to in the legend endorsed hereon, this Warrant is fully assignable at any time
upon surrender of this Warrant with a properly executed Assignment (in the form
of Schedule II hereto) at the principal office of the Company.
Dated: August 12, 1998
HOME RETAIL HOLDINGS, INC.
By: /s/ XXXXX XXXX
---------------------------------------
President
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[Corporate Seal]
Attest:
/s/ XXXX XXXXXX
--------------------------------
Secretary
LIBERTY BIDCO INVESTMENT CORPORATION
By:
---------------------------------------
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SCHEDULE I
FORM OF SUBSCRIPTION
(To be signed only upon exercise or surrender of each Warrant)
To: HOME RETAIL HOLDINGS, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, * shares of Common Stock of HOME RETAIL HOLDINGS, INC., and
herewith [use version (a) in the event of the payment of cash purchase price]
(a) makes payment of $_________ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to, __________ , whose
address is __________________________.
(b) surrenders that portion of the Warrant representing ____ shares of Common
Stock, and requests that the certificates for such shares be issued in the name
of, and delivered to ___________________, whose address is
______________________________.
To the extent that the exercise hereunder is for less than all of the shares of
Common Stock represented by the Warrant, the undersigned hereby requests that a
new Warrant for the remaining amount of shares of Common Stock be issued to
__________________ whose address is _____________________________________.
Dated:
--------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
(Address) ____________________________________________________
____________________________________________________
Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment for
additional Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.
SCHEDULE II
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto _________________ the right represented by the within Warrant to purchase
____________ shares of Common Stock of Home Retail Holdings, Inc., to which the
within Warrant relates, and appoints _____________ as attorney to transfer such
right on the books of Home Retail Holdings, Inc. with full power of substitution
in the premises.
Dated:
---------------------------
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant)
(Address) ____________________________________________________
____________________________________________________
--------------------------------------------
(Signature guaranteed by a Bank or Trust Company having its principal office in
New York City or by a Member Firm of the New York or American Stock Exchange)
