EXHIBIT 2.9
FORM OF NEW WARRANT
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THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
NOR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE
PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXCEPTION THEREFROM IS AVAILABLE.
WARRANT TO PURCHASE COMMON STOCK
OF BRADLEES, INC.
_____________, 199__
Bradlees, Inc., a corporation organized under the laws of the
Commonwealth of Massachusetts (the "Company"), hereby certifies that, for value
received, _____________, or registered assigns (the "Holder"), is entitled,
subject to the terms set forth below, to purchase from the Company at any time
or from time to time during the five-year period following the Effective Date
(as defined in the Joint Plan of Reorganization of Bradlees Stores, Inc. and
Affiliates under Chapter 11 of the Bankruptcy Code (the "Plan")) and before 5:00
p.m., New York time on ____________, 200__ (the "Expiration Date"), up to
__________ fully paid and nonassessable shares of Common Stock (as hereinafter
defined), ___________ Dollars ($________) par value per share, of the Company,
at a purchase price of Seven Dollars ($7.00) per share (the "Purchase Price").
The number and character of such shares of Common Stock and the Purchase Price
are 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 shall include Bradlees, Inc. and any corporation
which shall succeed or assume the obligations of Bradlees, Inc. hereunder.
(b) The term "Common Stock" includes (i) the shares of the Company's
common stock provided for under the Plan and authorized under the amended
and restated articles of organization of the Company, and (ii) any other
securities into which or for which any of the securities described in (i)
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The term "Plan Warrants" shall mean warrants to purchase Common
Stock, of a like term to this Warrant, 1,000,000 shares originally issued
on ________ pursuant to the Plan.
Section 1. Exercise of Warrant.
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1.1. Number of Shares Issuable upon Exercise. The Holder shall be
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entitled to receive, upon exercise of this Warrant in whole in accordance with
the terms of subsection 1.2 or upon exercise of this Warrant in part in
accordance with subsection 1.3, shares of Common Stock, subject to adjustment
pursuant to Section 5.
1.2. Full Exercise. This Warrant may be exercised in full by the
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Holder by surrender of this Warrant, with the form of subscription attached as
Exhibit A hereto (the "Subscription Form") duly executed by the Holder, to the
Company at its principal office or at the office of its Warrant agent (as
provided in Section 11), 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 for which this Warrant is
then exercisable by the Purchase Price then in effect.
1.3. Conversion. The Holder may convert this Warrant (the
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"Conversion Right"), in whole or in part, into the number of shares of Common
Stock of the Company calculated pursuant to the following formula by
surrendering this Warrant (with the notice of exercise form attached hereto as
Exhibit C duly executed) at the principal office of the Company specifying the
number of shares of Common Stock of the Company, the rights to purchase which
the Holder desires to convert:
Y (A - B)
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X = A
where: X = the number of shares of Common Stock to be issued to the Holder;
Y = the number of shares of Common Stock subject to this Warrant for
which the Conversion Right is being exercised;
A = the Fair Market Value of one share of Common Stock (as calculated
in Section 1.5 hereof);
B = the Purchase Price
The Company agrees that the shares so converted shall be deemed to be
issued to the holder hereof as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this Warrant, certificates for the
shares of stock so converted shall be delivered to the holder hereof within 15
days thereafter and, unless this Warrant has been fully converted or expired, a
new Warrant representing the portion of the shares, if
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any, with respect to which this Warrant shall not then have been converted,
shall also bc issued to the holder hereof within such 15 day period.
1.4. Partial Exercise. This Warrant may be exercised in part (but
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not for a fractional share) by surrender of this Warrant in the manner and at
the place provided in subsection 1.2 except that the amount payable by the
Holder on such partial exercise shall be the amount obtained by multiplying (a)
the number of shares of Common Stock designated by the Holder in the
Subscription Form by (b) the Purchase Price then in effect. The method of
payment shall be as permitted by Section 1.2. On any such partial exercise, the
Company, at its expense, will forthwith issue and deliver to or upon the order
of the Holder a new Warrant of like tenor, in the name of the Holder hereof or
as the Holder (upon payment by such Holder of any applicable transfer taxes),
may request, subject to compliance with applicable securities laws, exercisable
for the number of shares of Common Stock not purchased under this Warrant.
1.5. Fair Market Value. Fair Market Value of a share of Common
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Stock as of a particular date (the "Determination Date") shall mean:
(a) If the Common Stock is traded on an exchange or is
quoted on the National Association of Securities Dealers,
Inc. Automated Quotation ("NASDAQ") National Market System,
then the average of the closing or last sale price,
respectively, reported for the five business days
immediately preceding the Determination Date.
(b) If the Common Stock is not traded on an exchange or on
the NASDAQ National Market System but is traded in the over-
the-counter market or other similar organization (including
the Bulletin Board), then the average of the mean of the
closing bid and asked prices reported for the five business
days immediately preceding the Determination Date.
(c) If the Common Stock is not traded as provided above,
then the price determined in good faith by the Board of
Directors of the Company, provided that (1) the basis or
bases of each such determination shall be set forth in the
corporate records of the Company pertaining to meetings and
other actions of such board, and (2) such records are
available to the Holder for inspection during normal
business hours of the Company upon the giving of reasonable
prior notice.
(d) If the Determination Date is the date of a
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liquidation, dissolution or winding up, or any event deemed
to be a liquidation, dissolution or winding up pursuant to
the Company's charter, then all amounts to be payable per
share to Holders of the Common Stock pursuant to the charter
in the event of such liquidation, dissolution or winding up,
plus all other amounts to be payable per share in respect of
the Common Stock in liquidation under the charter, assuming
for the purposes of this clause (d) that all of the shares
of Common Stock then issuable upon exercise of all of the
Plan Warrants are outstanding at the Determination Date.
1.6. Company Acknowledgment. The Company will, at the time of the
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exercise of this Warrant, upon the request of the Holder acknowledge in writing
its continuing obligation to afford to the Holder any rights to which the Holder
shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such request,
such failure shall not affect the continuing obligation of the Company to afford
to the Holder any such rights.
1.7. Trustee for Warrant Holders. In the event that a bank or
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trust company shall have been appointed as trustee for the Holder pursuant to
Subsection 4.2, such bank or trust company shall have all the powers and duties
of a Warrant agent appointed pursuant to Section 11 and shall accept, in its own
name for the account of the Company or such successor person as may be entitled
thereto, all amounts otherwise payable to the Company or such successor, as the
case may be, on exercise of this Warrant pursuant to this Section 1.
Section 2. Delivery of Stock Certificates, etc. on Exercise. The
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Company agrees that the shares of Common Stock purchased upon exercise of this
Warrant shall be deemed to be issued to the Holder as the record owner of such
shares as of the close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid. 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, or as the Holder (upon payment by such Holder of
any applicable transfer taxes) may direct, subject to compliance with applicable
securities laws, a certificate or certificates for the number of duly and
validly issued, fully paid and nonassessable shares of Common Stock to which the
Holder shall be entitled on such exercise, plus, in lieu of any fractional share
to which the Holder would otherwise be entitled, cash equal to such fraction
multiplied by the then Fair Market Value of one full share, together with any
other stock or other securities and property (including cash, where applicable)
to which the Holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
Section 3. Adjustment for Dividends in Other Stock,
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Property, etc. Reclassification. In case at any time or from time to time, the
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holders of Common Stock shall have received, or (on or after the record date
fixed for the determination of shareholders eligible to receive) shall have
become entitled to receive, without payment therefor, any of the following:
(a) other or additional stock or other securities or property
(other than cash) by way of dividend (other than a dividend of
shares of Common Stock which is covered by Section 5 hereof), or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement, other than additional shares of Common Stock
issued as a stock dividend or in a stock split (adjustments in
respect of which are provided for in Section 5),
then and in each such case the Holder, on the exercise hereof as provided in
Section 1, shall be entitled to receive the amount of stock and other securities
and property (including cash in the cases referred to in subdivisions (b) and
(c) of this Section 3) which the Holder would hold on the date of such exercise
if on the date of original issuance of this Warrant the Holder 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 date hereof to
and including the date of such exercise, retained such shares and all such other
or additional stock and other securities and property (including cash in the
cases referred to in subdivisions (b) and (c) of this Section 3) receivable by
the Holder as aforesaid during such period, giving effect to all adjustments
called for during such period by Section 4 and 5.
Section 4. Adjustment for Reorganization Consolidation, Merger, etc.
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4.1. Reorganization, Consolidation, Merger etc. In case at any time
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or from time to time, the Company 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, as a condition to the consummation of such a transaction, proper and
adequate provision shall be made by the Company whereby the Holder, on the
exercise hereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation or merger or the
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effective date of such dissolution, as the case may be, shall receive, in lieu
of the Common Stock issuable on such exercise prior to such consummation, the
stock and other securities ("Other Securities") and property (including cash) to
which the Holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if the Holder had so
exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
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following the transfer of all or substantially all of its properties or assets
in a transaction contemplated by subsection 4.1(c), the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock and
other securities and property (including cash, where applicable) receivable by
the Holder after the effective date of such dissolution pursuant to this Section
4 to a bank or trust company having its principal office in New York, New York,
as trustee for the Holder.
4.3. Continuation of Terms. Upon any reorganization, consolidation,
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merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant.
Section 5. Extraordinary Events Regarding Common Stock. In the
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event that the Company shall (a) issue additional shares of the Common Stock as
a dividend or other distribution on outstanding Common Stock, (b) subdivide its
outstanding shares of Common Stock, or (c) combine its outstanding shares of the
Common Stock into a smaller number of shares of the Common Stock, then, in each
such event, the Purchase Price shall, simultaneously with the happening of such
event, be adjusted by multiplying the then Purchase Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Purchase Price then in effect. The
Purchase Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The number of shares of Common Stock that the Holder shall thereafter, on the
exercise hereof as provided in Section 1, be entitled to receive shall be
adjusted to a number determined by multiplying the number of shares of Common
Stock that would otherwise (but for the provisions of this Section 5) be
issuable on such exercise by a fraction of which (a) the numerator is the
Purchase Price that would otherwise (but for the provisions of this Section 5)
be in effect, and (b) the denominator is the Purchase Price in effect on the
date of such exercise.
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Section 6. Chief Financial Officer's Certificate as to Adjustments.
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In each case of any adjustment or readjustment in the shares of Common Stock (or
Other Securities) issuable on the exercise of the Warrants, the Company at its
expense will promptly cause its Chief Financial Officer 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,
including a statement of [(a) the consideration received or receivable by the
Company for any additional shares of Common Stock issued or sold or deemed to
have been issued or sold, (b) the number of shares of Common Stock outstanding
or deemed to be outstanding,] and (c) the Purchase Price and the number of
shares of Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted or
readjusted as provided in this Warrant. The Company will forthwith mail a copy
of each such certificate to the Holder and any Warrant agent of the Company
(appointed pursuant to Section 11 hereof).
Section 7. Reservation of Stock etc. Issuable on Exercise of
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Warrant. Upon the Effective Date (as that term is defined in the Plan), the
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Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
Section 8. Assignment; Exchange of Warrant. Subject to compliance
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with applicable Securities laws, this Warrant, and the rights evidenced hereby,
may be transferred by the Holder (the "Transferor") with respect to any or all
of the shares of Common Stock underlying this Warrant. On the surrender for
exchange of this Warrant, with the Transferor's endorsement in the form of
Exhibit B attached hereto (the "Transferor Endorsement Form"), to the Company,
the Company at its expense (but with payment by the Transferor of any applicable
transfer taxes) will issue and deliver to or on the order of the Transferor
thereof a new Warrant or Warrants of like tenor, in the name of the Transferor
and/or the transferee(s) specified in such Transferor Endorsement Form (each a
"Transferee"), 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
so surrendered by the Transferor. Each Transferee shall be entitled (pro rata
according to the number of shares of Common Stock issuable under the
Transferee's new Warrant) to those benefits accruing to the Transferor under
this Warrant prior to the date of issue of such new Warrant or Warrants.
Section 9. Registration Rights; Procedure; Indemnification.
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9.1. Registration Rights
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(a) On one occasion, on and after the date hereof
(exercisable immediately) but not later than the anniversary
date of this Warrant, the Company, upon a
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written request therefor from any registered holder or
holders of more than [fifty percent (50%)] of the total
number of shares of Common Stock owned or to be owned upon
exercise of this Warrant and all other Plan Warrants (the
"Warrant Stock"), shall prepare and file a registration
statement with the Securities and Exchange Commission (the
"Commission'') under the Securities Act of 1933, as amended
(the "Securities Act"), covering the Warrant Stock that is
the subject of such request to the extent required to permit
the sale or other disposition of the Warrant Stock so
registered by the holders thereof (collectively, the
"Seller"). The underwriter, if any, of an offering
registered pursuant to this Subsection 9.1(a) shall be
selected by the holders or persons entitled to be holders of
at least a majority of the Warrant Stock for which
registration has been requested and shall be reasonably
acceptable to the Company. In the event the Warrant Stock is
included in a registration statement that includes
securities to be sold for the account of the Company, such
written request for registration shall be deemed to have
been given pursuant to Subsection 9.1(b), rather than this
Subsection 9.1(a), and the rights of the holders of Warrant
Stock covered by such written request shall be governed by
Subsection 9.1(b).
(b) On and after the date hereof, if the Company at any
time proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own
account or for the account of other security holders
(including a registration requested by other Holders of Plan
Warrants under Section 9.1(a)) or both (except with respect
to registration statements on Forms X-0, X-0 or another form
not available for registering the Common Stock that may be
acquired upon exercise of this Warrant for sale to the
public), it shall give at least 45 days' prior written
notice to the Holder of its intention to do so. Upon the
written request of the Holder, received by the Company
within 30 days after the giving of any such notice by the
Company, to register any of the Warrant Stock owned or to be
owned by the Holder pursuant to the exercise of this
Warrant, the Company will cause such Warrant Stock as to
which registration shall have been so requested to be
included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the
extent required to permit the sale or other disposition of
the Warrant Stock so registered by the Seller. In the event
that
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any registration pursuant to this Section 9 shall be, in
whole or in part, an underwritten public offering of Common
Stock for the account of the company, the number of shares
of Warrant Stock to be included in such an underwriting may
be reduced by the Company and the managing underwriter if
and to the extent that the Company and the underwriter shall
be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company
therein; provided, however, that the Company shall notify
the Seller in writing of any such reduction. Notwithstanding
the forgoing provisions, the Company may withdraw any
registration statement referred to in this Section 9 without
thereby incurring any liability to the Seller.
9.2. Registration Procedures. If and whenever the Company is
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required by the provisions hereof to effect the registration of any shares of
Warrant Stock under the Securities Act, the company will, as expeditiously as
possible:
(a) prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with
respect to such securities and use its best efforts to cause
such registration statement to become and remain effective
for the period of the distribution contemplated thereby
(determined as hereinafter provided):
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective for the period
specified in paragraph (a) above and comply with the
provisions of the Securities Act with respect to the
disposition of all of the Warrant Stock covered by such
registration statement in accordance with the Seller's
intended method of disposition set forth in such
registration statement for such period;
(c) furnish to the Seller, and to each underwriter, if any,
such number of copies of the registration statement and the
prospectus included therein (including each preliminary
prospectus) as such persons reasonably may request in order
to facilitate the public sale or their disposition of the
securities covered by such registration statement;
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(d) use its best efforts to register or qualify the
Seller's Warrant Stock covered by such registration
statement under the securities or "blue sky" laws of such
jurisdictions as the Seller or, in the case of an
underwritten public offering, the managing underwriter
reasonably shall request, provided, however, that the
Company shall not for any such purpose be required to
qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified
or to consent to general service of process in any such
jurisdiction;
(e) list the Warrant Stock covered by such registration
statement with any securities exchange or quotation system
on which the Common Stock of the Company is then listed or
traded;
(f) immediately notify the Seller and each underwriter, if
any, at any time when a prospectus relating to the Warrant
Stock is required to be delivered under the Securities Act,
of the happening of any event of which the Company has
knowledge as a result of which such prospectus, as then in
effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(g) make available for inspection by the Seller, any
underwriter participating in any distribution pursuant to
such registration statement, and any attorney, accountant or
other agent retained by the Seller or underwriter, all
financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's
officers, directors and employees to supply all information
reasonably requested by the Seller, underwriter, attorney,
accountant or agent in connection with such registration
statement.
For purposes of this Section 9, the period of distribution of
securities in a firm commitment underwritten public offering shall be deemed to
extend until each underwriter has completed the distribution of all securities
purchased by it, or sooner if the managing underwriter consents, and the period
of distribution of securities in any other registration shall be deemed to
extend until the earlier of the sale of all securities covered thereby and one
year after the effective date thereof.
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In connection with each registration hereunder, the Seller will
furnish to the Company in writing such information with respect to itself and
the proposed distribution by it as reasonably shall be necessary in order to
assure compliance with federal and applicable state securities laws. In
connection with each registration pursuant to this Section 9 covering an
underwritten public offering, the Company and the Seller agree to enter into a
written agreement with the managing underwriter in such form and containing such
provisions as are customary in the securities business for such an arrangement
between such underwriter and companies of the Company's size and investment
stature.
9.3. Expenses. All expenses incurred by the Company in complying
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with this Section 9, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars and costs of insurance are called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Warrant Stock, including any fees and disbursements of
any special counsel to the Seller, are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with up
to the registration statement filed under Section 9.1(a) and all Registration
Expenses in connection with any registration statement filed under 9.1(b). All
Selling Expenses in connection with each registration statement under this
Section 9 shall be borne by the Seller in proportion to the number of shares
sold by the Seller relative to the number of shares sold under such registration
statement or as all sellers thereunder may agree.
9.4. Indemnification and Contribution.
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(a) In the event of a registration of any Warrant Stock under
the Securities Act pursuant to this Section 9, the Company will
indemnify and hold harmless the Seller, each underwriter of such
Warrant Stock thereunder and each other person, if any, who
controls such Seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Seller, or such
underwriter or controlling person 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 statement or alleged untrue
statement of any material fact contained in any registration
statement under which such Warrant Stock was registered under the
Securities Act pursuant to this Section 9, any preliminary
prospectus or final prospectus contained
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therein, or any amendment or supplement thereof, 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
necessary to make the statements therein not misleading, and will
reimburse the Seller, each such underwriter and each such
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 Company will not be liable in any such case if
and to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in
conformity with information furnished by any such Seller, the
underwriter or any such controlling person in writing
specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any of the Warrant Stock
under the Securities Act pursuant to Section 9, the Seller will
indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of the Securities Act,
each officer of the Company who signs the registration statement,
each director of the Company, each underwriter, and each person
who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer, director,
underwriter or controlling person 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 statement or alleged untrue
statement of any material fact contained in the registration
statement under which such Warrant Stock was registered under the
Securities Act pursuant to this Section 9, any preliminary
prospectus or final prospectus contained therein, or any
amendment or supplement thereof, 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 necessary to make the
statements therein not misleading, and will reimburse the Company
and each such officer, director, underwriter and controlling
person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss,
claim,
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damage, liability or action; provided, however, that the Seller
will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such Seller, as
such, furnished in writing to the Company by such Seller
specifically for use in such registration statement or
prospectus, and provided, further, however, that the liability of
the Seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to
the proportion that the public offering price of the Warrant
Stock sold by the Seller under such registration statement bears
to the total public offering price of all securities sold
thereunder, but not in any event to exceed the proceeds received
by the Seller from the sale of Warrant Stock covered by such
registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9.4(c)
and shall only relieve it from any liability which it may have to
such indemnified party under this Section 9.4(c) if and to the
extent the indemnifying party is prejudiced by such omission. In
case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from
the indemnifying party to such indemnified party of its election
so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this
Section 9.4(c) for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof
other than reasonable costs of investigation and of liaison with
counsel so selected; provided, however, that, if the defendants
in any such action include both the
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indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or
additional to those available to the indemnifying party or if the
interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party or if the
indemnifying party shall not have assumed or undertaken the
defense of such action with counsel reasonably satisfactory to
such indemnified party, the indemnified party shall have the
right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by
the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which
either (i) the Seller, or any controlling person of the Seller,
makes a claim for indemnification pursuant to this Section 9.4
but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case
notwithstanding the fact that this Section 9.4 provides for
indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the Seller or
controlling person of the Seller in circumstances for which
indemnification is provided under this Section 9.4; then, and in
each such case, the Company and the Seller will contribute to the
aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such
proportion so that the Seller is responsible for the portion
represented by the percentage that the public offering price of
its securities offered by the registration statement bears to the
public offering price of all securities offered by such
registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A)
the Seller will not be required to contribute any amount in
excess of the public offering price of all such securities
offered by it pursuant to such registration statement; and (B) no
person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 10(f) of the Securities Act) will be
entitled to contribution from any
14
person or entity who was not guilty of such fraudulent
misrepresentation.
Section 10. Replacement of Warrant. On receipt of evidence
----------------------
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company or, in the case of any
such mutilation, on surrender and cancellation of this Warrant, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
Section 11. Warrant Agent. The Company may, by written notice to
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the Holder, appoint an agent having an office in New York, New York for the
purpose of issuing Common Stock on the exercise of this Warrant pursuant to
Section 1, exchanging this Warrant pursuant to Section 8, and replacing this
Warrant pursuant to Section 10, 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.
Section 12. Transfer on the Company's Books. 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.
Section 13. Notices. Any notice pursuant to this Warrant by the
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Company or the Holder shall be mailed by first class registered or certified
mail, postage prepaid, to (a) the Company, at its principal office at Xxx
Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, XX 00000-0000, Attention: Xxxxx X.
Xxxxxxx, Esq.; or (b) the Holder, at its principal office at _______________,
Attention: __________. Notices shall be deemed given 48 hours after mailing.
Section 14. 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 shall be construed and enforced in
accordance with and governed by the laws of the State of New York. The headings
in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
IN WITNESS WHEREOF, the Company has executed this Warrant under seal
as of the date first written above.
BRADLEES, INC.
By:
15
Name:
Title:
Attest:
By:
Title:
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Exhibit A
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: BRADLEES, INC.
The undersigned, the Holder of the within Warrant, hereby irrevocably elects to
exercise this Warrant for, and to purchase thereunder, __________ shares of
Common Stock of Bradlees, Inc. and herewith makes payment of $______________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to _______________________ whose address is
______________________________.
Dated:
(Signature must conform to name of Holder as
specified on the face of the Warrant)
(Address)
Exhibit B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the person(s) named below under the heading "Transferee" the
right represented by the within Warrant to purchase the number of shares of
Common Stock of Bradlees, Inc. to which the within Warrant relates specified
under the heading "Number Transferred," respectively, opposite the name(s) of
such person(s) and appoints each such person Attorney to transfer its respective
right on the books of Bradlees, Inc. with full power of substitution in the
premises.
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Transferee Percentage Number
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Transferred Transferred
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Dated: ___________________, 19__
(Signature must conform to name of
Holder as specified on the face of
the warrant)
Signed in the presence of:
(Name) (Address)
ACCEPTED AND AGREED:
[TRANSFEREE]
(Address)
(Name) (Address Cont.)
Exhibit C
NOTICE OF EXERCISE
TO: BRADLEES, INC.
1. Check Box that Applies:
[_] The undersigned hereby elects to purchase _____ shares of Common Stock
of BRADLEES, INC. pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in fall.
[_] The undersigned hereby elects to convert the attached warrant into
_____ shares of Common Stock of BRADLEES, Inc. pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates representing said shares of'
Common Stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------------------
(Name)
--------------------------------------------
--------------------------------------------
(Address)
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
Signature
