Exhibit 4.3
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR
OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER ARE
SUBJECT TO AND HAVE THE BENEFIT OF A REGISTRATION RIGHTS AGREEMENT DATED AS
OF OCTOBER 27,1999 BETWEEN RITE AID CORPORATION AND ▇.▇. ▇▇▇▇▇▇ VENTURES
CORPORATION, A COPY OF WHICH IS ON FILE WITH RITE AID CORPORATION.
Dated: October 27, 1999
WARRANT
TO PURCHASE 2,500,000 SHARES OF COMMON STOCK OF
RITE AID CORPORATION
EXPIRING SEPTEMBER 23, 2002
THIS IS TO CERTIFY THAT, for value received, ▇.▇. ▇▇▇▇▇▇ VENTURES
CORPORATION or registered assigns ("HOLDER") is entitled to purchase from
RITE AID CORPORATION, a Delaware corporation ("COMPANY"), at any time or
from time to time after 9:00 a.m., New York City time, on the date hereof
and prior to 5:00 p.m., New York City time, on September 23, 2002 at the
place where the Warrant Agency is located, at the Exercise Price, the
number of shares of Common Stock of Company, par value $1.00 per share,
shown above, all subject to adjustment and upon the terms and conditions
hereinafter provided.
Certain terms used in this Warrant are defined in Article 4.
ARTICLE 1
EXERCISE OF WARRANTS
SECTION 1.1 Method of Exercise. To exercise this Warrant, in whole or
in part, the Holder shall deliver on any Business Day to Company, at the
Warrant Agency, (a) this Warrant, (b) a written notice of such Holder's
election to exercise this Warrant, which notice shall specify the number of
shares of Common Stock to be purchased (which shall be a whole number of
shares if for less than all the shares then issuable hereunder), the method
of payment elected by the holder pursuant to clause (c) below, the
denominations of the share certificate or certificates desired and the name
or names in which such certificates are to be registered, and (c) payment
of the Exercise Price with respect to such shares. Such payment may be
made, at the option of the Holder, either (a) by cash, certified or bank
cashier's check or wire transfer in an amount equal to the product of (i)
the Exercise Price times (ii) the number of Warrant Shares for which this
Warrant is being exercised or (b) by receiving from Company the number of
Warrant Shares equal to (i) the number of Warrant Shares for which this
Warrant is being exercised minus (ii) the number of Warrant Shares having a
value, based on the average reported closing prices on the five Trading
Days immediately prior to the date of such exercise, equal to the product
of (x) the Exercise Price times (y) the number of Warrant Shares as to
which this Warrant is being exercised.
Company shall, as promptly as practicable and in any event within
seven days after receipt of such notice and payment, execute and deliver or
cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock to be issued pursuant to such notice together with cash in
lieu of any fractions of a share as provided in Section 1.3. The share
certificate or certificates so delivered shall be in such denominations as
may be specified in such notice, and shall be issued in the name of the
Holder or such other name or names as shall be designated in such notice.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and such Holder or any
other Person so designated to be named therein shall be deemed for all
purposes to have become a holder of record of shares, as of the date the
aforementioned notice and payment is received by Company. If this Warrant
shall have been exercised only in part, Company shall, at the time of
delivery of such certificate or certificates, deliver to the Holder a new
Warrant evidencing the rights to purchase the remaining shares of Common
Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or, at the request of the Holder
specified in such notice, appropriate notation may be made on this Warrant
which shall then be returned to the Holder. Company shall pay all expenses,
taxes and other charges payable in connection with the preparation,
issuance and delivery of share certificates and new Warrants, except that,
if share certificates or new Warrants shall be registered in a name or
names other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid by the
Holder at the time of delivery of the aforementioned notice of exercise or
promptly upon receipt of a written request of Company for payment.
SECTION 1.2 Shares to Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly
issued, fully paid and nonassessable and, if the Common Stock is then
listed on any national securities exchange or quoted on NASDAQ, shall be
duly listed or quoted thereon, as the case may be.
SECTION 1.3 No Fractional Shares Required to Be Issued. Company shall
not be required to issue fractions of shares of Common Stock upon exercise
of this Warrant. If any fraction of a share would, but for this Section, be
issuable upon final exercise of this Warrant, in lieu of such fractional
share Company shall pay to the Holder, in cash, an amount equal to the same
fraction of the closing price per share of the Common Stock on the Trading
Day immediately prior to the date of such exercise.
SECTION 1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such
shares are registered under the Securities Act, shall bear the following
legend:
"This security has not been registered under the Securities Act
of 1933 and may not be sold or offered for sale unless registered
under said Act and any applicable state securities laws or unless an
exemption from such registration is available. This security is also
subject to and has the benefit of a Registration Rights Agreement
dated as of October 27, 1999 between Rite Aid Corporation and ▇.▇.
▇▇▇▇▇▇ Ventures Corporation, copies of which are on file with Rite
Aid Corporation."
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public offering pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate (who may be an employee
of such holder) and reasonably acceptable to Company, the securities
represented thereby need no longer be subject to restrictions on resale
under the Securities Act.
SECTION 1.5 Reservation. Company has duly reserved and will keep
available for issuance upon exercise of the Warrants the total number of
Warrant Shares deliverable from time to time upon exercise of all Warrants
from time to time outstanding.
ARTICLE 2
WARRANT AGENCY; TRANSFER, EXCHANGE AND REPLACEMENT OF WARRANTS
SECTION 2.1 Warrant Agency. As long as this Warrant remains
outstanding, Company shall perform the obligations of and be the warrant
agency with respect to the Warrant (the "WARRANT AGENCY") at its address
set forth on the signature page or at such other address as Company shall
specify by notice to the Holder.
SECTION 2.2 Ownership of Warrant. Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner
hereof (notwithstanding any notations of ownership or writing hereon made
by any person other than Company) for all purposes and shall not be
affected by any notice to the contrary, until due presentment of this
Warrant for registration of transfer as provided in this Article 2.
SECTION 2.3 Transfer of Warrant. Company agrees to maintain at the
Warrant Agency books for the registration of transfers of the Warrant, and
transfer of this Warrant and all rights hereunder shall be registered, in
whole or in part, on such books, upon surrender of this Warrant at the
Warrant Agency, together with a written assignment of this Warrant duly
executed by the Holder or its duly authorized agent or attorney, with (if
the Holder is a natural person) signatures guaranteed by a bank or trust
company or a broker or dealer registered with the NASD, and funds
sufficient to pay any transfer taxes payable upon such transfer. Upon
surrender and, if required, such payment, Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and in
the denominations specified in the instrument of assignment (which shall be
whole numbers of shares only) and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, if any, and this
Warrant shall promptly be canceled.
SECTION 2.4 Division or Combination of Warrants. This Warrant may be
divided or combined with other Warrants upon presentment hereof and of any
Warrant or Warrants with which this Warrant is to be combined at the
Warrant Agency, together with a written notice specifying the names and
denominations (which shall be whole numbers of shares only) in which the
new Warrant or Warrants are to be issued, signed by the Holder and the
holders thereof or their respective duly authorized agents or attorneys.
Subject to compliance with Section 2.3 as to any transfer or assignment
which may be involved in the division or combination, Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice.
SECTION 2.5 Loss, Theft, Destruction of Warrant Certificates. Upon
receipt of evidence satisfactory to Company of the ownership of and the
loss, theft, destruction or mutilation of any Warrant and, in the case of
any such loss, theft or destruction, upon receipt of indemnity or security
satisfactory to Company (it being understood and agreed that if the holder
of such Warrant is ▇.▇. ▇▇▇▇▇▇ & Co. Incorporated or one of its
subsidiaries, then a written agreement of indemnity given by such holder
alone shall be satisfactory to Company and no further security shall be
required) or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, Company will make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like
tenor and representing the right to purchase the same aggregate number of
shares of Common Stock.
SECTION 2.6 Expenses of Delivery of Warrants. Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of Warrants
hereunder.
ARTICLE 3
ANTIDULUTION PROVISIONS
SECTION 3.1 Adjustment Generally. The Exercise Price and the number
of shares of Common Stock (or other securities or property) issuable upon
exercise of this Warrant shall be subject to adjustment from time to time,
as follows:
SECTION 3.2 Common Stock Dividends. In case at any time after the
date hereof, Company shall pay or make a dividend or other distribution on
all or any portion of its Common Stock or shall make a dividend or other
distribution on any other class of Capital Stock of Company which dividend
or distribution includes Common Stock, the Exercise Price in effect at the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be decreased by multiplying such Exercise Price by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such decrease to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (i), the number of shares
of Common Stock at anytime outstanding shall not include shares held in the
treasury of Company but shall include shares issuable in respect of scrip
Common Stock. If any dividend or distribution of the type described in this
Section 3.2 is declared but not so paid or made, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if
such dividend or distribution had not been declared.
SECTION 3.3 Common Stock Rights. In case at any time after the date
hereof, Company shall pay or make a dividend or other distribution on all
of its Common Stock consisting of, or shall otherwise issue to all holders
of its Common Stock, rights, warrants or options (not being available on an
equivalent basis to the Holder of this Warrant upon exercise) entitling the
holders of its Common Stock to subscribe for or purchase Common Stock at a
price per share less than the current market price per share (determined as
provided in Section 3.9) of the shares of Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights,
warrants or options (other than pursuant to a dividend reinvestment plan),
the Exercise Price in effect at the opening of business on the day
following the date fixed for such detennination shall be decreased by
multiplying such Exercise Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or purchase
would purchase at such current market price and the denominator shall be
the number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such decrease to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (ii), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of Company but
will include shares issuable in respect of scrip certificates, if any,
issued in lieu of fractions of shares of Common Stock. Company will not
issue any rights or warrants in respect of Common Stock held in the
treasury of Company (or, if rights or warrants are issued in respect of all
of the Common Stock of Company, will not exercise any such rights or
warrants in respect of Common Stock held in the treasury of Company). In
the event that such rights or warrants are not so issued, the Exercise
Price shall again be adjusted to be the Exercise Price which would then be
in effect if such date fixed for the determination of stockholders entitled
to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such current market price, and
in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such
rights or warrants. The value of such consideration, if other than cash,
shall be determined in the reasonable good faith judgment of the Board of
Directors of Company, whose determination shall be conclusive.
SECTION 3.4 Common Stock Subdivisions and Combinations. In case at
any time after the date hereof, all or any portion of the Common Stock
outstanding shall be subdivided into a greater number of shares of Common
Stock, the Exercise Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely in case at any time after the date
hereof, all or any portion of the shares of Common Stock outstanding shall
each be combined into a smaller number of shares of Common Stock, the
Exercise Price in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be,
to become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
SECTION 3.5 Distributions of Property. In case at any time after the
date hereof, Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets
(including securities, rights, warrants or options, but excluding any
rights, warrants, or options referred to in Section 3.3 as entitling the
holders of Common Stock to subscribe for or purchase Common Stock at a
price per share less than the current market price, any dividend or
distribution paid exclusively in cash, any dividend or distribution
referred to in Section 3.2 and any dividend or distribution upon a merger
or consolidation referred to in Section 3.16), the Exercise Price shall be
decreased so that the same shall equal the rate determined by multiplying
the Exercise Price in effect immediately prior to the close of business on
the date fixed for the determination of stockholders entitled to receive
such distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in Section 3.9) of the
Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive) of the portion of the assets or evidence of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. If any dividend or
distribution of the type described in this Section 3.5 is declared but not
so paid or made, the Exercise Price shall again be adjusted to the Exercise
Price which would then be in effect if such dividend or distribution had
not been declared.
SECTION 3.6 Special Cash Distributions. In case at any time after the
date hereof, Company shall, by dividend or otherwise, make a distribution
to all holders of its Common Stock consisting exclusively of cash
(excluding any cash that is distributed upon a merger or consolidation or a
sale or transfer of all or substantially all of the assets of Company to
which Section 3.16 applies or as part of a distribution referred to in
Section 3.5) in an aggregate amount that, combined together with (i) the
aggregate amount of any other distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment pursuant
to this Section 3.6 has been made and (ii) the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive) of consideration payable in respect of
any tender offer by Company or any of its Subsidiaries for all or any
portion of the Common Stock concluded within the 12 months preceding the
date of payment of such distribution and in respect of which no adjustment
pursuant to Section 3.7 has been made, exceeds 12.5% of the product of the
current market price per share of Common Stock on the date for the
determination of holders of Common Stock entitled to receive such
distribution times the number of shares of Common Stock outstanding on such
date, then, and in each such case, immediately after the close of business
on such date for determination, the Exercise Price shall be decreased so
that the same shall equal the rate determined by multiplying the Exercise
Price in effect immediately prior to the close of business in the date
fixed for determination of the stockholders entitled to receive such
distribution by a fraction (A) the numerator of which shall be equal to the
current market price per share (determined as provided in Section 3.9) of
the Common Stock on the date fixed for such determination less an amount
equal to the quotient of (x) the excess of such combined amount over such
12.5% and (y) the number of shares of Common Stock outstanding on such date
for determination and (B) the denominator of which shall be equal to the
current market price per share (determined as provided in Section 3.9) of
the Common Stock on such date for determination. If any dividend or
distribution of the type described in this Section 3.6 is declared but not
so paid or made, the Exercise Price shall again be adjusted to the Exercise
Price which would then be in effect if such dividend or distribution had
not been declared.
SECTION 3.7 Tender Offers. In case a tender or exchange offer made by
Company or any Subsidiary for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance
(up to any maximum specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive) that combined together with (i) the aggregate of the
cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) as of the expiration of such
tender or exchange offer, of consideration payable in respect of any other
tender or exchange offer, by Company or any Subsidiary of Company for all
or any portion of the Common Stock expiring within the 12 months preceding
the expiration of such tender or exchange offer and in respect of which no
adjustment, pursuant to this Section 3.7 has been made and (ii) the
aggregate amount of any distributions to all holders of Company's Common
Stock made exclusively in cash within 12 months preceding the expiration of
such tender or exchange offer and in respect of which no adjustment
pursuant to Section 3.6 has been made, exceeds 12.5% of the product of the
current market price per share of the Common Stock (determined as provided
in Section 3.9) as of the last time (the "EXPIRATION TIME") tenders or
tenders could have been made pursuant to such tender or exchange offer (as
it may be amended) times the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the Expiration Time, then,
and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Exercise Price shall be
decreased so that the same shall equal the rate determined by multiplying
the Exercise Price immediately prior to the close of business on the date
of the Expiration Time by a fraction (A) the numerator of which shall be
equal to (1) the product of (x) the current market price per share of the
Common Stock (determined as provided in Section 3.9) on the date of the
Expiration Time and (y) the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the date of the Expiration
Time less (2) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on
the acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares, and (B) the denominator of which shall be equal
to the product of (x) the current market price per share of the Common
Stock (determined as provided in Section 3.9, as of the Expiration Time and
(y) the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) as of the Expiration Time less the number of
all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum,
being referred to as the "PURCHASED SHARES"). In the event that Company is
obligated to purchase shares pursuant to any such tender offer, but Company
is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if
such tender offer had not been made.
SECTION 3.8 Reclassifications. The reclassification of Common Stock
into securities other than Common Stock (other than any reclassification
upon a consolidation or merger to which Section 3.16 applies) shall be
deemed to involve (i) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of Section 3.5))
and (ii) a subdivision or combination, as the case may be, of the number of
Common Stock outstanding immediately prior to such reclassification into
the number of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective," as the case may be, and "the day
upon which such subdivision or combination becomes effective", within the
meaning of Section 3.4.
SECTION 3.9 Current Market Price. For the purpose of any computation
under Section 3.3, 3.5, 3.6 or 3.7, the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily
Closing Prices per share for the five consecutive Trading Days immediately
preceding the earlier of the day in question and the day before the "ex
date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date", when used
with respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on the applicable securities exchange
or in the applicable securities market without the right to receive such
issuance or distribution.
SECTION 3.10 Optional Reductions. Company may make such reductions in
the Exercise Price, in addition to those required by Sections 3.2 to 3.7,
as it considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for income tax purposes. Company from time to
time may reduce the Exercise Price by any amount for any period of time if
the period is at least twenty days, the reduction is irrevocable during the
period and the Board of Directors (or, to the extent permitted by
applicable law, a duly authorized committee thereof) shall have made a
determination that such reduction would be in the best interests of
Company, which determination shall be conclusive. Whenever the Exercise
Price is reduced pursuant to the preceding sentence, Company shall mail to
the Holder a notice of the reduction at least fifteen days prior to the
date the reduced Exercise Price takes effect, and such notice shall state
the reduced Exercise Price and the period it will be in effect.
SECTION 3.11 Adjustments to Warrant Shares. Upon any adjustment to the
Exercise Price pursuant to the foregoing provisions of this Article 3, the
number of shares of Common Stock for which this Warrant may be exercised
shall be adjusted by multiplying the number of shares of Common Stock for
which this Warrant was exercisable immediately prior to such adjustment by
a fraction, the numerator of which shall be the Exercise Price in effect
immediately prior to such adjustment and the denominator of which shall be
the Exercise Price in effect immediately after such adjustment.
SECTION 3.12 Certain Limitations. Notwithstanding any other provision
of this Article 3, no adjustment to the Exercise Price shall reduce the
Exercise Price below the then par value per share of the Common Stock, and
any such purported adjustment shall instead reduce the Exercise Price to
such par value. Company hereby covenants not to take any action (1) to
increase the par value per share of the Common Stock, (2) that would or
does result in any adjustment in the Exercise Price that would cause the
Exercise Price to be less than the then par value per share of the Common
Stock or (3) that would or does result in any adjustment to the number of
shares for which this Warrant may be exercised that would cause such number
to exceed the number of authorized but unissued shares of Common Stock not
reserved for other purposes.
SECTION 3.13 Minimum Adjustment. Notwithstanding any of the foregoing
provisions of this Article 3, no adjustment in the Exercise Price need be
made until all cumulative adjustments amount to 1% or more of the Exercise
Price as last adjusted. Any adjustments that are not made shall be carried
forward and taken into account in any subsequent adjustment.
SECTION 3.14 Notice to Holder. Whenever the Exercise Price is adjusted
as herein provided, Company shall compute the adjusted Exercise Price and
number of Warrant Shares and shall prepare a certificate signed by the
Treasurer of Company setting forth the adjusted Exercise Price and number
of Warrant Shares and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be delivered
to the Holder.
SECTION 3.15 Deferred Delivery. In any case in which this Article 3
provides that an adjustment shall become effective immediately after a
record date for an event, Company may defer until the occurrence of such
event (x) issuing to the Holder upon exercise of this Warrant after such
record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such exercise by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
exercise before giving effect to such adjustment and (y) paying to such
Holder any amount in cash in lieu of any fractional share of Common Stock
pursuant to Section 1.03.
SECTION 3.16 Merger and Consolidation. In the event that Company shall
be a party to any transaction, including without limitation any (i)
recapitalization or reclassification of the Common Stock (other than a
change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination of the
Common Stock), (ii) any consolidation of Company with, or merger of the
Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock
of the Company), (iii) any sale or transfer of all or substantially all of
the assets of the Company or (iv) any compulsory share exchange, pursuant
to which the Common Stock is converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as
part of the terms of such transaction whereby the Holder of this Warrant
shall have the right thereafter, to exercise this Warrant for the kind and
amount of securities, cash and other property receivable upon such
recapitalization, reclassification, consolidation, merger, sale, transfer
or share exchange by a holder of the number of shares of Common Stock for
which this Warrant might have been exercised immediately prior to such
recapitalization, reclassification, consolidation, merger, sale, transfer
or share exchange. Company or the person formed by such consolidation or
resulting from such merger or which acquires such assets or which acquires
Company's shares, as the case may be, shall make provisions in its
certificate or articles of incorporation or other constituent document to
establish such right. Such certificate or articles of incorporation or
other constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article 3.
The above provisions shall similarly apply to successive recapitalization,
reclassifications, consolidations, mergers, sales, transfers or share
exchanges.
ARTICLE 4
DEFINITIONS
The following terms, as used in this Warrant, have the following
meanings:
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
on which banking institutions located in New York are authorized by law or
other governmental action to be closed.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership,
partnership interests (whether general or limited) and (iv) any other
interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the
issuing Person,
"COMPANY" means Rite Aid Corporation, a Delaware corporation, and its
successors.
"EXERCISE PRICE" means $11.00 per share of Common Stock, subject to
adjustment pursuant to Article 3.
"HOLDER" has the meaning set forth in the first paragraph of this
Warrant.
"NASD" means The National Association of Securities Dealers, Inc.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or
business).
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
rules and regulations of the Securities and Exchange Commission thereunder.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of
that Person (or a combination thereof) and (ii) any partnership (a) the
sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any
combination thereof).
"TRADING DAY" means (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such
other national securities exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market, a day on which
trade may be made on the Nasdaq National Market or (z) if the applicable
security is not otherwise listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or executive order
to close.
"WARRANT AGENCY" has the meaning set forth in Section 2.1.
"WARRANT SHARES" means the shares of Common Stock issuable upon the
exercise of the Warrants.
"WARRANTHOLDER" means a holder of a Warrant.
All references herein to "DAYS" shall mean calendar days unless
otherwise specified.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Notices. Notices and other communications provided for
herein shall be in writing and may be given by mail, courier, confirmed
telex or facsimile transmission and shall, unless otherwise expressly
required, be deemed given when received or, if mailed, four Business Days
after being deposited in the United States mail with postage prepaid and
properly addressed. In the case of the Holder, such notices and
communications shall be addressed to its address as shown on the books
maintained by the Warrant Agency, unless the Holder shall notify the
Warrant Agency that notices and communications should be sent to a
different address (or telex or facsimile number), in which case such
notices and communications shall be sent to the address (or telex or
facsimile number) specified by the Holder.
SECTION 5.2 Amendments. The provisions of this Warrant may be
amended, modified or waived only with the written consent of Company and
the Holder.
SECTION 5.3 Governing Law. THIS WARRANT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW).
SECTION 5.4 Transfer; Covenants to Bind Successor and Assigns. All
covenants, stipulations, promises and agreements in this Warrant contained
by or on behalf of Company or the Holder shall bind its successors and
assigns, whether so expressed or not. This Warrant shall be transferable
and assignable by the Holder hereof in whole or from time to time in part
to any other Person and the provisions of this Warrant shall be binding
upon and inure to the benefit of the Holder hereof and its successors and
assigns.
SECTION 5.5 No Stockholder Rights. Prior to exercise of this Warrant,
the Holder shall not be entitled to any rights of a stockholder with
respect to the shares of Common Stock purchasable upon exercise, including,
without limitation, the right to vote such shares of Common Stock, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of stockholder meetings, and, except as explicitly stated herein,
the Holder shall not be entitled to any notice or other communication
concerning the business or affairs of Company.
IN WITNESS WHEREOF, Company has caused this Warrant to be executed in
its corporate name by one of its officers thereunto duly authorized, and
its corporate seal to be hereunto affixed, attested by its Secretary or an
Assistant Secretary, all as of the day and year first above written.
RITE AID CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Executive Vice President
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
[Corporate Seal]
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary