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WARRANT AGREEMENT
between
MERCURY FINANCE COMPANY
and
XXXXXX TRUST AND SAVINGS BANK
as Warrant Agent
__________________________
Dated as of __________, 1998
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TABLE OF CONTENTS
PAGE
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Form of Warrant; Execution; Registration . . . . . . . . . . 3
2.1 Form of Warrant; Execution of Warrants . . . . . . . . . . . 3
2.2 Registration . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Countersignature of Warrants . . . . . . . . . . . . . . . . 3
Section 3. Transfer and Exchange of Warrants. . . . . . . . . . . . . . 4
Section 4. Term of Warrants; Exercise of Warrants; Compliance with
Government Regulation. . . . . . . . . . . . . . . . . . . . 4
4.1 Term of Warrants. . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Exercise of Warrants. . . . . . . . . . . . . . . . . . . . . 5
4.3 Compliance with Government Regulations; Qualification under
Securities Laws . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Mutilated or Missing Warrant Certificates . . . . . . . . . . 6
Section 7. Reservation of Warrant Shares . . . . . . . . . . . . . . . . 7
Section 8. Stock Exchange Listings . . . . . . . . . . . . . . . . . . . 7
Section 9. Adjustment of Exercise Price, Number of Warrant Shares and
Shares of Capital Stock Warrants Are Exercisable Into . . . . 7
9.1 Mechanical Adjustments. . . . . . . . . . . . . . . . . . . . 8
(a) Adjustment for Change in Capital Stock . . . . . . . . . 8
(b) Adjustment for Rights Issue. . . . . . . . . . . . . . . 8
(c) Adjustment for Other Distributions . . . . . . . . . . . 9
(d) Adjustment for Common Stock and Convertible Securities
Issue. . . . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Current Market Price; Price Per Share. . . . . . . . . . 10
(f) When De Minimis Adjustment May Be Deferred . . . . . . . 11
(g) Adjustment in Exercise Price . . . . . . . . . . . . . . 12
(h) When No Adjustment Required. . . . . . . . . . . . . . . 12
(i) Shares of Common Stock . . . . . . . . . . . . . . . . . 12
(j) Expiration of Rights, etc. . . . . . . . . . . . . . . . 13
9.2 Voluntary Adjustment by the Company . . . . . . . . . . . . . 13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
9.3 Notice of Adjustment . . . . . . . . . . . . . . . . . . . . 13
9.4 Preservation of Purchase Rights upon Merger or
Consolidation . . . . . . . . . . . . . . . . . . . . . . . . 14
9.5 Statement on Warrants . . . . . . . . . . . . . . . . . . . . 14
Section 10. Fractional Interests . . . . . . . . . . . . . . . . . . . . 14
Section 11. No Rights as Stockholders; Notices to Holders . . . . . . . 14
Section 12. Payments in U.S. Currency . . . . . . . . . . . . . . . . . 15
Section 13. Merger or Consolidation or Change of Name of Warrant Agent . 15
Section 14. Appointment of Warrant Agent . . . . . . . . . . . . . . . . 16
14.1 Concerning the Warrant Agent . . . . . . . . . . . . . . . . 16
14.2 Correctness of Statements . . . . . . . . . . . . . . . . . 16
14.3 Breach of Covenants . . . . . . . . . . . . . . . . . . . . 16
14.4 Performance of Duties . . . . . . . . . . . . . . . . . . . 16
14.5 Reliance on Counsel . . . . . . . . . . . . . . . . . . . . 16
14.6 Proof of Actions Taken . . . . . . . . . . . . . . . . . . . 17
14.7 Compensation and Indemnification . . . . . . . . . . . . . . 17
14.8 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . 17
14.9 Other Transactions in Securities of Company . . . . . . . . 17
14.10 Liability of Warrant Agent . . . . . . . . . . . . . . . . . 18
14.11 Reliance on Documents . . . . . . . . . . . . . . . . . . . 18
14.12 Validity of Agreement . . . . . . . . . . . . . . . . . . . 18
14.13 Instructions from Company . . . . . . . . . . . . . . . . . 18
Section 15. Change of Warrant Agent . . . . . . . . . . . . . . . . . . 18
Section 16. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 17. Cancellation of Warrants . . . . . . . . . . . . . . . . . . 19
Section 18. Supplements and Amendments . . . . . . . . . . . . . . . . . 19
Section 19. Successors . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 20. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . 20
Section 21. Benefits of this Agreement . . . . . . . . . . . . . . . . . 20
Section 22. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 20
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 23. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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WARRANT AGREEMENT, dated as of __________, 1998, between
Mercury Finance Company, a Delaware corporation (the "COMPANY"), and
[Xxxxxx Trust and Savings Bank], as Warrant Agent (together with any
successors and assigns, the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company was a Debtor and Debtor-in-Possession in
the case (the "CHAPTER 11 CASE") filed in the United States Bankruptcy Court
for the District of ___________________ (the "BANKRUPTCY COURT"), entitled
"In re Mercury Finance Company, Debtor," Chapter 11 Case No. ________, under
the Bankruptcy Code;
WHEREAS, in connection with and as part of the transactions to
be consummated pursuant to the confirmation of a Plan of Reorganization (as
amended, modified or supplemented from time to time) of the Company in the
Chapter 11 Case (the "PLAN"), the Company has agreed to issue three series of
Warrants (the "Series A Warrants", the "Series B Warrants" and the "Series C
Warrants" and collectively, the "WARRANTS") with each series of Warrants
exercisable for the purchase of ________[5%] shares of Common Stock of the
Company outstanding on the effective date of the Plan (the "EFFECTIVE DATE").
WHEREAS, by Order dated __________ __, 1998, the Bankruptcy
Court confirmed the Plan;
WHEREAS, the Plan contemplates that the Company will enter
into certain agreements, including, without limitation, this Warrant
Agreement;
WHEREAS, the Company desires to issue the Warrants, each of
which entitles the holder thereof to purchase one share of its Common Stock
(each of said shares of Common Stock deliverable upon exercise of the
Warrants, a "WARRANT SHARE"); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing to so act in connection with
the issuance, division, transfer, exchange and exercise of Warrants.
NOW, THEREFORE, in consideration of the foregoing, to
implement the terms of the Plan, and for the purpose of defining the terms
and provisions of the Warrants and the respective rights and obligations
thereunder of the Company and the registered owners of the Warrants (the
"HOLDERS") and any security into which they may be exchanged, the Company and
the Warrant Agent hereby agree as follows:
Section 1. DEFINITIONS. The following terms, as used herein,
have the following meanings (all terms defined in the singular to have the
correlative meanings when used in the plural and vice versa):
"AGREEMENT" means this Warrant Agreement, as the same may be
amended, modified or supplemented from time to time.
"ASSETS" has the meaning ascribed to such term in Section
9.1(c) hereof.
"BUSINESS DAY" means a day other than (a) a Saturday or
Sunday, (b) any day on which banking institutions located in the City of New
York, New York or Chicago, Illinois are required or authorized by law or by
local proclamation to close, or (c) any day on which the New York Stock
Exchange is closed.
"COMMERCIALLY REASONABLE EFFORTS", when used with respect to
any obligation to be performed or term or provision to be observed hereunder,
means such efforts as a prudent Person seeking the benefits of such
performance or action would make, use, apply or exercise to preserve, protect
or advance its rights or interests, PROVIDED that such efforts do not require
such Person to incur a material financial cost or a substantial risk of
material liability unless such cost or liability (i) would customarily be
incurred in the course of performance or observance of the relevant
obligation, term or provision, (ii) is caused by or results from the wrongful
act or negligence of the Person whose performance or observance is required
hereunder, or (iii) is not excessive or unreasonable in view of the rights or
interests to be preserved, protected or advanced. Such efforts may include,
without limitation, the expenditure of such funds and retention by such
Person of such accountants, attorneys or other experts or advisors as may be
necessary or appropriate to effect the relevant action; the undertaking of
any special audit or internal investigation that may be necessary or
appropriate to effect the relevant action; and the commencement, termination
or settlement of any action, suit or proceeding involving such Person to the
extent necessary or appropriate to effect the relevant action.
"COMMON STOCK" means the common stock, par value $___, of the
Company after the Effective Date (as defined in the Plan).
"CONVERTIBLE SECURITIES" has the meaning ascribed to such term
in Section 9.1(d) hereof.
"EXERCISE PERIOD" has the meaning ascribed to such term in
Section 4.1 hereof.
"EXERCISE PRICE" means (i) $_____________ per share for the
Series A Warrants, (ii) $_____________ per share for the Series B Warrants,
and (iii) $______________ per share for the Series C Warrants, as adjusted
pursuant to Section 9 hereof.
"HOLDER" has the meaning ascribed to such term in the preamble
hereto.
"NASD" has the meaning ascribed to such term in Section 4.2
hereof.
"PERSON" means a natural person, a corporation, a partnership,
a trust, a joint venture, any regulatory authority or any other entity or
organization.
"PLAN" has the meaning ascribed to such term in the preamble
hereto.
"PRICE PER SHARE" has the meaning ascribed to such term in
Section 9.1(e)(ii) hereof.
"RIGHTS" has the meaning ascribed to such term in Section
9.1(b) hereof.
"TRANSFER AGENT" has the meaning ascribed to such term in
Section 7 hereof.
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"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority thereto.
"SERIES A WARRANTS" has the meaning ascribed to such term in
the preamble hereto.
"SERIES B WARRANTS" has the meaning ascribed to such term in
the preamble hereto.
"SERIES C WARRANTS" has the meaning ascribed to such term in
the preamble hereto.
"SUBSIDIARY" has the meaning ascribed to such term in Section
9.1(c) hereof.
"WARRANT" has the meaning ascribed to such term in the
preamble hereto.
"WARRANT CERTIFICATE" has the meaning ascribed to such term in
Section 2.1 hereof.
"WARRANT REGISTER" has the meaning ascribed to such term in
Section 2.2 hereof.
"WARRANT SHARE" has the meaning ascribed to such term in the
preamble hereto.
Section 2. FORM OF WARRANT; EXECUTION; REGISTRATION.
2.1 FORM OF WARRANT; EXECUTION OF WARRANTS. The certificates
evidencing the Warrants (the "WARRANT CERTIFICATES") shall be in registered
form only and shall be in the form set forth as Exhibit A hereto. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, President, Chief Executive Officer or one of its Vice
Presidents. The signature of any such officer on the Warrant Certificates
may be manual or by facsimile. Any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution
of such Warrant Certificate, shall be a proper officer of the Company to sign
such Warrant Certificate. Each Warrant Certificate shall be dated the date
it is countersigned by the Warrant Agent pursuant to Section 2.3 hereof.
2.2 REGISTRATION. The Warrant Certificates shall be numbered
and shall be registered on the books of the Company maintained at the
principal office of the Warrant Agent initially in Chicago, Illinois (or such
other place in the continental United States as the Warrant Agent shall from
time to time notify the Company and the Holders in writing) (the "WARRANT
REGISTER") as they are issued. The Company and the Warrant Agent shall be
entitled to treat the registered owner of any Warrant as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person.
2.3 COUNTERSIGNATURE OF WARRANTS. The Warrant Certificates
shall be countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. Warrant Certificates may be countersigned,
however, by the Warrant Agent and may be delivered by the Warrant Agent
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such
officers at the time of such countersignature, issuance or delivery. The
Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, the Chief Executive Officer, any Vice President, the Treasurer
or the Secretary of the Company, countersign, issue and deliver Warrant
Certificates
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entitling the Holders thereof to purchase not more than an aggregate of
_____________ Warrant Shares (subject to adjustment pursuant to Section 9
hereof) and shall countersign, issue and deliver Warrant Certificates as
otherwise provided in this Agreement.
Section 3. TRANSFER AND EXCHANGE OF WARRANTS. Subject to the
terms hereof, the Warrant Agent shall initially countersign, register in the
Warrant Register and deliver Warrants hereunder in accordance with the
written instructions of the Company. Subject to the terms hereof and the
receipt of such documentation as the Warrant Agent may reasonably require,
the Warrant Agent shall thereafter from time to time register the transfer of
any outstanding Warrants upon the Warrant Register upon surrender of the
Warrant Certificate or Certificates evidencing such Warrants duly endorsed or
accompanied (if so required by it) by a written instrument or instruments of
transfer in form reasonably satisfactory to the Warrant Agent, duly executed
by the registered Holder or Holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Subject to the
terms of this Agreement, each Warrant Certificate may be exchanged for
another Warrant Certificate or Certificates entitling the Holder thereof to
purchase a like aggregate number of Warrant Shares, at the same exercise
price and having the same term, as the surrendered Warrant Certificate or
Certificates then entitles such Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Certificates shall make such request in
writing delivered to the Warrant Agent, and shall surrender, duly endorsed or
accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form reasonably satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged. Upon
registration of transfer, the Company shall issue and the Warrant Agent shall
countersign and deliver by certified mail a new Warrant Certificate or
Certificates to the persons entitled thereto.
No service charge shall be made for any exchange or
registration of transfer of a Warrant Certificate or of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp
tax or other tax or other governmental charge that is imposed in connection
with any such exchange or registration of transfer pursuant to Section 5
hereof.
By accepting the initial delivery, transfer or exchange of
Warrants, each Holder shall be deemed to agree to the terms of this Agreement
as it may be in effect from time to time, including any amendments or
supplements duly adopted in accordance with Section 18 hereof.
Section 4. TERM OF WARRANTS; EXERCISE OF WARRANTS; COMPLIANCE
WITH GOVERNMENT REGULATION.
4.1 TERM OF WARRANTS. Subject to the terms of this
Agreement, each Holder shall have the right, until the expiration of the
applicable Exercise Period for the Warrants held, to receive from the Company
the number of Warrant Shares which the Holder may at the time be entitled to
receive upon exercise of such Warrants and payment of the Exercise Price then
in effect for such Warrant Shares, and the Warrant Shares issued to a Holder
upon exercise of its Warrants shall be duly authorized, validly issued, fully
paid, nonassessable and shall not have been issued in violation of or subject
to any preemptive rights. Each Warrant not exercised prior to the expiration
of its Exercise Period shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease as of the
expiration of such Exercise Period. The Exercise Period for the Warrants
shall begin at 9:00 a.m., New York City time, on the date
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of their issuance, and end at 5:00 p.m., New York City time, on (a)
____________________, 2001 (three years after the Effective Date (as defined
in the Plan) for the Series A Warrants, (b) _______________, 2002 (four years
after the Effective Date) for the Series B Warrants, and (c) _______________,
2003 (five years after the Effective Date) for the Series C Warrants.
4.2 EXERCISE OF WARRANTS. During the Exercise Period, each
Holder may, subject to this Agreement, exercise from time to time some or all
of the Warrants evidenced by its Warrant Certificate(s) by (i) surrendering
to the Company at the principal office of the Warrant Agent such Warrant
Certificate(s) with the form of election to purchase on the reverse thereof
duly filled in and signed, which signature shall be guaranteed by a bank or
trust company having an office or correspondent in the United States or a
broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc. (the "NASD"), and (ii)
paying to the Warrant Agent for the account of the Company the aggregate
Exercise Price for the number of Warrant Shares in respect of which such
Warrants are exercised. Warrants shall be deemed exercised on the date such
Warrant Certificate(s) are surrendered to the Warrant Agent and tender of
payment of the aggregate Exercise Price is made. Payment of the aggregate
Exercise Price shall be made in cash by wire transfer of immediately
available funds to the Warrant Agent for the account of the Company or by
certified or official bank check or checks to the order of the Company or by
any combination thereof.
Upon the exercise of any Warrants in accordance with this
Agreement, the Company shall issue and cause to be delivered with all
reasonable dispatch, to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate or certificates for
the number of full Warrant Shares issuable upon the exercise of such Warrants
and shall take such other actions at its sole expense as are necessary to
complete the exercise of such Warrants (including, without limitation,
payment of any cash with respect to fractional interests required under
Section 10 hereof). The Warrant Agent shall have no responsibility or
liability for such issuance or the determination of the number of Warrant
Shares issuable upon such exercise. The certificate or certificates
representing such Warrant Shares shall have been issued and any person so
designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date such Warrants are exercised
hereunder. Each Warrant Share, when issued upon exercise of the Warrants,
shall be duly authorized, validly issued, fully paid and non-assessable and
will not have been issued in violation of or subject to any preemptive rights.
In the event that less than all of the Warrants evidenced by a
Warrant Certificate are exercised, the Holder thereof shall be entitled to
receive a new Warrant Certificate or Certificates as specified by such Holder
evidencing the remaining Warrant or Warrants, and the Warrant Agent is hereby
irrevocably authorized by the Company to countersign, issue and deliver the
required new Warrant Certificate or Certificates evidencing such remaining
Warrant or Warrants pursuant to the provisions of this Section 4.2 hereof and
of Section 3 hereof. The Company, whenever required by the Warrant Agent,
will supply the Warrant Agent with Warrant Certificates duly executed on
behalf to the Company for such purpose.
Upon delivery of the Warrant Shares issuable upon exercise in
accordance herewith and of any required new Warrant Certificates, the Company
shall direct the Warrant Agent by written order to cancel the Warrant
Certificates surrendered upon exercise. Such canceled Warrant Certificates
shall then be disposed of by the Warrant Agent in a manner permitted by
applicable
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laws and satisfactory to the Company in accordance with its written
instructions to the Warrant Agent. The Warrant Agent shall account promptly
to the Company with respect to Warrants exercised and concurrently pay to the
Company all amounts received by the Warrant Agent upon exercise of such
Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at its office. The Company shall at its sole
expense supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may reasonably request.
4.3 COMPLIANCE WITH GOVERNMENT REGULATIONS; QUALIFICATION
UNDER SECURITIES LAWS. The Company is issuing the Warrants based upon the
belief that the issuance and the exercise of the Warrants, and the issuance
of the Common Stock upon exercise of the Warrants, are exempt from
registration under the Federal securities laws pursuant to Section 1145 of
the Bankruptcy Code. The Company covenants that if following a due demand to
exercise warrants any shares of Common Stock required to be reserved for
purposes of exercise of such Warrants require, under any federal or state
law, registration with or approval of any governmental authority before such
shares may be issued upon exercise and/or subsequently transferred, and the
Holder requesting the exercise of a Warrant provides an opinion of counsel
acceptable to the Company to the effect that the exercise of the Warrant
and/or the transfer of the underlying Common Stock require registration,
then, the Company will, unless the Company has received an opinion of counsel
to the effect that such registration is not then required by such laws, use
its Commercially Reasonable Efforts to cause such shares to be duly so
registered or approved, as the case may be; PROVIDED that in no event shall
such shares of Common Stock be issued, and the exercise of all such Warrants
shall be suspended, for the period from the date of such due demand for
exercise until such registration or approval is in effect; PROVIDED, FURTHER,
that the Exercise Period for such Warrants (but only such Warrants) shall be
extended one day for each day (or portion thereof) that any such suspension
is in effect. The Company shall promptly notify the Warrant Agent of any
such suspension, and the Warrant Agent shall have no duty, responsibility or
liability in respect of any shares of Common Stock issued or delivered prior
to its receipt of such notice. The Company shall promptly notify the Warrant
Agent of the termination of any such suspension, and such notice shall set
forth the number of days that the Exercise Period with respect to such
Warrants shall be extended as a result of such suspension.
Section 5. PAYMENT OF TAXES. The Company will pay all
documentary stamp and other like taxes, if any, attributable to the initial
issuance and delivery of the Warrants and the initial issuance and delivery
of the Warrant Shares upon the exercise of Warrants, PROVIDED, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer of the Warrants or involved in the issuance or
delivery of any Warrant Shares in a name other than that of the Holder of the
Warrants being exercised, and the Warrant Agent shall not register any such
transfer or issue or deliver any Warrant Certificate(s) or Warrant Shares
unless or until the persons requesting the registration or issuance shall
have paid to the Warrant Agent for the account of the Company the amount of
such tax, if any, or shall have established to the reasonable satisfaction of
the Company that such tax, if any, has been paid.
Section 6. MUTILATED OR MISSING WARRANT CERTIFICATES. In the
event that any Warrant Certificate shall be mutilated, lost, stolen or
destroyed, the Company shall issue, and at the
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direction of the Company by written order the Warrant Agent shall countersign
and deliver in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate or in lieu of and substitution for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate of like
tenor and representing an equivalent right or interest, but only upon receipt
of evidence reasonably satisfactory to the Company and the Warrant Agent of
such loss, theft or destruction of such Warrant Certificate and an indemnity
or bond, if requested by the Company or the Warrant Agent, also reasonably
satisfactory to them. An applicant for such a substitute Warrant Certificate
shall also comply with such other reasonable procedures as the Company or the
Warrant Agent may reasonably require.
Section 7. RESERVATION OF WARRANT SHARES. There have been
reserved, and the Company shall at all times keep reserved, out of its
authorized Common Stock, free of all preemptive rights, a number of shares of
Common Stock sufficient to provide for the exercise of the rights of purchase
represented by the outstanding Warrants. The transfer agent for the Common
Stock and every subsequent or other transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the Warrants (each, a
"TRANSFER AGENT") will be and are hereby irrevocably authorized and directed
at all times to reserve such number of authorized shares as shall be required
for such purpose. The Company will keep a copy of this Agreement on file
with each Transfer Agent. The Warrant Agent is hereby irrevocably authorized
to requisition from time to time from the Company or a Transfer Agent, as the
case may be, the certificates for Warrant Shares required to honor
outstanding Warrants upon exercise thereof in accordance with the terms of
this Agreement. The Company will supply its Transfer Agents with duly
executed stock certificates for such purposes and will itself provide or
otherwise make available any cash which may be payable as provided in Section
10 hereof. The Company will furnish to its Transfer Agents a copy of all
notices of adjustments and certificates related thereto, transmitted to each
Holder pursuant to Section 9.3 hereof. The Company will give the Warrant
Agent prompt notice of any change in any Transfer Agent or any change of
address of any Transfer Agent.
Before taking any action which would cause an adjustment
pursuant to Section 9 reducing the Exercise Price, the Company will take any
and all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
Section 8. STOCK EXCHANGE LISTINGS. The Company shall use
its Commercially Reasonable Efforts (including requests for waivers) to have
each series of the Warrants included for quotation in The Nasdaq National
Market or the Nasdaq Small Cap Market or listed on the American Stock
Exchange, and shall use its Commercially Reasonable Efforts to maintain such
listing or inclusion. In the event the Warrants do not qualify for such
listing or inclusion, the Company will use its Commercially Reasonable
Efforts (including, requests for waivers) to effect such inclusion or listing
whenever the Warrants qualify therefor, and prior to such time, shall use
Commercially Reasonable Efforts to cause some other customary trading market
to admit the warrants for trading. Any such listing and inclusion shall be
at the Company's sole expense.
Section 9. ADJUSTMENT OF EXERCISE PRICE, NUMBER OF WARRANT
SHARES AND SHARES OF CAPITAL STOCK WARRANTS ARE EXERCISABLE INTO. The number
and kind of securities purchasable
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upon the exercise of each Warrant, and the Exercise Price, shall be subject
to adjustment from time to time upon the happening of certain events, as
hereinafter described. The Warrant Agent shall be fully protected in relying
on the certificate described in Section 9.3 below regarding the adjustment
and on any adjustment therein contained, and shall not be obligated or
responsible for calculating any adjustment, nor shall it be deemed to have
knowledge of such an adjustment unless and until it shall have received such
certificate.
9.1 MECHANICAL ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Exercise Price shall be
subject to adjustment as follows:
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. Subject to
paragraphs (f) and (h) below, in case the Company shall (i)
pay a dividendon its outstanding shares of Common Stock in
shares of Common Stock ormake a distribution of shares of
Common Stock on its outstanding shares of Common Stock, (ii)
make a distribution on its outstanding shares of Common Stock
in shares of its capital stock other than Common Stock, (iii)
subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iv) combine its
outstanding shares of Common Stock into a smaller number of
shares of Common Stock, or (v) issue, by reclassification of
its shares of Common Stock, other securities of the Company
(including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving
entity), then the number of Warrant Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled
to receive upon the exercise of the Warrant the kind and
number of Warrant Shares or other securities of the Company
which such Holder would have owned or have been entitled to
receive upon the happening of any of the events described
above had such Warrant been exercised in full immediately
prior to the happening of such event or any record date with
respect thereto. If a Holder is entitled to receive shares of
two or more classes of capital stock of the Company pursuant
to the foregoing upon exercise of Warrants, the allocation of
the adjusted Exercise Price between such classes of capital
stock shall be determined reasonably and in good faith by the
Board of Directors of the Company. After such allocation, the
exercise privilege and the Exercise Price with respect to each
class of capital stock shall thereafter be subject to
adjustment on terms substantially identical to those
applicable to Common Stock in this Section 9. An adjustment
made pursuant to this paragraph (a) shall become effective
immediately after the record date for such event or, if none,
immediately after the effective date of such event. Such
adjustment shall be made successively whenever such an event
occurs.
(b) ADJUSTMENT FOR RIGHTS ISSUE. Subject to paragraphs
(f) and (h) below, in case the Company shall issue rights,
options or warrants (collectively, "RIGHTS") to all holders of
its outstanding Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a Price Per Share (as
defined in paragraph (e) below) which is lower at the record
date mentioned below than the Current Market Price (as defined
in paragraph (e) below) per share of Common Stock on such
record date, then the number of Warrant Shares
-8-
thereafter purchasable upon the exercise of each Warrant shall
be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Warrant by a
fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on the date of issuance of such
Rights plus the additional Number of Shares (as defined in
paragraph (e) below) of Common Stock offered for subscription
or purchase in connection with such Rights and the denominator
of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such Rights plus the
number of shares of Common Stock which the aggregate Proceeds
(as defined in paragraph (e) below) received or receivable by
the Company upon exercise of such Rights would purchase at the
Current Market Price per share of Common Stock at such record
date. Such adjustment shall be made whenever Rights are
issued, and shall become effective immediately after the
record date for the determination of stockholders entitled to
receive Rights.
(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS. Subject to
paragraphs (f) and (h) below, in case the Company shall
distribute to all holders of its shares of Common Stock (x)
evidences of indebtedness or assets (excluding cash dividends
or distributions payable out of the consolidated earnings or
surplus legally available for such dividends or distributions
and dividends or distributions referred to in paragraphs (a)
or (b) above) of the Company or any corporation or other legal
entity a majority of the voting equity or equity interests of
which are owned, directly or indirectly, by the Company (a
"SUBSIDIARY"), or (y) shares of capital stock of a Subsidiary
(such evidences of indebtedness, assets and securities as set
forth in clauses (x) and (y) above, collectively, "ASSETS"),
then in each case the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares
theretofore purchasable upon the exercise of each Warrant by a
fraction, the numerator of which shall be the Current Market
Price per share of Common Stock on the date of such
distribution and the denominator of which shall be such
Current Market Price per share of Common Stock less the fair
value as of such record date as determined reasonably and in
good faith by the Board of Directors of the Company of the
portion of the Assets applicable to one share of Common Stock.
Such adjustment shall be made whenever any such distribution
is made, and shall become effective on the date of
distribution retroactive to the record date for the
determination of stockholders entitled to receive such
distribution.
(d) ADJUSTMENT FOR COMMON STOCK AND CONVERTIBLE
SECURITIES ISSUE. Subject to paragraphs (f) and (h) below, in
case the Company shall issue shares of its Common Stock, or
securities convertible into, or exchangeable or exercisable
for Common Stock or Rights to subscribe for or purchase such
securities (collectively, "CONVERTIBLE SECURITIES") (excluding
the issuance of (i) Common Stock or Convertible Securities
issued in any of the transactions described in paragraphs (a),
(b) or (c) above or (ii) Warrant Shares issued upon the
exercise of the Warrants, at a Price Per Share of Common
Stock, in the case of the issuance of Common Stock, or at a
Price Per Share of Common Stock initially deliverable upon
conversion, exercise or exchange of such Convertible
Securities, in each
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case, together with any other consideration received by the
Company in connection with such issuance, below the Current
Market Price per share of Common Stock on the date the Company
fixed the offering, conversion or exercise or exchange price
of such additional shares), then the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall
be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Warrant by a
fraction, the numerator of which shall be the total number of
shares of Common Stock outstanding on such date plus the
additional Number of Shares (as defined below) offered for
subscription or purchase and the denominator of which shall be
the Number of Shares outstanding on such date plus the Number
of Shares which the aggregate Proceeds (as defined below) of
the total amount of Convertible Securities so offered would
purchase at the Current Market Price per share of Common Stock
at such record date. In case the Company shall issue and sell
Convertible Securities for a consideration consisting, in
whole or in part, of property other than cash or its
equivalent, then in determining the "Price Per Share" of
Common Stock and the "consideration received by the Company"
for purposes of this paragraph (d), the Board of Directors of
the Company shall reasonably and in good faith determine the
fair value of such property. The determination of whether any
adjustment is required under this paragraph (d), by reason of
the sale and issuance of any Convertible Securities and the
amount of such adjustment, if any, shall be made at such time
and not at the subsequent time of issuance of shares of Common
Stock upon the exercise, conversion or exchange of Convertible
Securities.
(e) CURRENT MARKET PRICE; PRICE PER SHARE. For the
purpose of any computation under Section 4.2 hereof or this
Section 9.1, the "CURRENT MARKET PRICE" per share of Common
Stock at any date shall be the average of the daily closing
prices for the 20 consecutive trading days preceding the date
of such computation. The closing price for each day shall be
(x) if the Common Stock shall be then listed or admitted to
trading on the New York Stock Exchange, the closing price on
the NYSE - Consolidated Tape (or any successor composite tape
reporting transactions on the New York Stock Exchange) or, (y)
if such a composite tape shall not be in use or shall not
report transactions in the Common Stock, or if the Common
Stock shall be listed on a stock exchange other than the New
York Stock Exchange, the last reported sales price regular way
or, in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for
such day, in each case on the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading (which shall be the national securities
exchange on which the greatest number of shares of the Common
stock have been traded during such 20 consecutive trading
days) or (z) if the Common Stock is not listed or admitted to
trading, the average of the closing bid and asked prices of
the Common Stock in the over-the-counter market as reported by
The Nasdaq National Market or any comparable system or, if the
Common Stock is not included for quotation in The Nasdaq
National Market or a comparable system, the average of the
closing bid and asked prices as furnished by two members of
the NASD selected reasonably and in good faith from time to
time by the Board of Directors for that purpose. In
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the absence of one or more such quotations, the Current Market
Price per share of the Common Stock shall be determined
reasonably and in good faith by the Board of Directors of the
Company.
(ii) For purposes of this Section 9.1, "PRICE PER SHARE"
shall be defined and determined according to the following
formula:
P = R/N
where
P = Price Per Share;
R = the "Proceeds" received or receivable by the
Company which (x) in the case of shares of
Common Stock is the total amount received or
receivable by the Company in consideration for
the issuance and sale of such shares; (y) in
the case of Rights or of Convertible Securities
with respect to shares of Common Stock, is the
total amount received or receivable by the
Company in consideration for the issuance and
sale of Rights or such Convertible Securities,
plus the minimum aggregate amount of additional
consideration, other than the surrender of such
Convertible Securities, payable to the Company
upon exercise, conversion or exchange thereof;
and (z) in the case of Rights to subscribe for
or purchase such Convertible Securities, is the
total amount received or receivable by the
Company in consideration for the issuance and
sale of such Rights plus the minimum aggregate
amount of additional consideration, other than
the surrender of such Convertible Securities,
payable upon the exercise of the Right and the
conversion or exchange or exercise of such
Convertible Securities; PROVIDED that in each
case the proceeds received or receivable by the
Company shall be the net cash proceeds after
deducting therefrom any compensation paid or
discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or
other performing similar services;
N = the "Number of Shares," which (x) in the case
of Common Stock is the number of shares issued;
and (y) in the case of Rights or of Convertible
Securities with respect to shares of Common
Stock, is the maximum number of shares of
Common Stock initially issuable upon exercise,
conversion or exchange thereof.
(f) WHEN DE MINIMIS ADJUSTMENT MAY BE DEFERRED. No
adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%)
in the number of Warrant Shares purchasable upon the exercise
of each Warrant, PROVIDED that any adjustments which by reason
of this paragraph (f) are
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not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
shall be made to the nearest one-thousandth of a Warrant Share
and the nearest cent.
(g) ADJUSTMENT IN EXERCISE PRICE. Whenever the number
of Warrant Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided, the Exercise Price
payable upon exercise of each Warrant immediately prior to
such adjustment shall be adjusted by multiplying such Exercise
Price by a fraction, the numerator of which shall be the
number of Warrant Shares purchasable upon the exercise of each
Warrant immediately prior to such adjustment and the
denominator of which shall be the number of Warrant Shares
purchasable immediately thereafter.
(h) WHEN NO ADJUSTMENT REQUIRED. No adjustment in the
number of Warrant Shares purchasable upon the exercise of each
Warrant or in the exercise price need be made under this
Section 9.1 in connection with: (i) the issuance of Common
Stock, options, rights, Warrants or other securities pursuant
to the Plan; (ii) shares of Common Stock, options, rights,
warrants or other securities issued pursuant to any plan
adopted by the Company or its subsidiaries for the benefit of
employees or directors; (iii) any issuance of shares of Common
Stock or securities convertible into or exchangeable for
shares of Common Stock pursuant to an underwritten public
offering for a price per share of Common Stock in the case of
an issuance of shares of Common Stock, or for a price per
share of Common Stock initially deliverable upon conversion or
exchange of such securities, that is equal to or greater than
95% of the Current Market Price per share of Common Stock on
the date the Company fixed the offering, conversion or
exchange price of such additional shares of Common Stock; (iv)
sales of Common Stock pursuant to a plan adopted by the
Company for reinvestment of dividends or interest; or (v)
shares of Common Stock issued to shareholders of any
corporation that is acquired by, merged into or made a part or
subsidiary of the Company in an arm's-length transaction.
Additionally, no adjustment need be made if the Company issues
or distributes to each Holder of Warrants the shares, rights,
options, warrants, evidences of indebtedness, assets or other
securities referred to in those paragraphs which each Holder
of Warrants would have been entitled to receive had the
Warrants been exercised for the number of Warrant Shares for
which Warrants are then exercisable prior to the happening of
such event or the record date with respect thereto. No
adjustment in the number of Warrant Shares will be made for a
change in the par value of the shares of Common Stock.
(i) SHARES OF COMMON STOCK. For all purposes of this
Agreement, the term "shares of Common Stock" shall mean (i)
the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class
of stock resulting from successive changes or reclassification
of such shares consisting solely of changes in par value, or
from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an
adjustment made pursuant to this Section 9.1, the Holders
shall become entitled to purchase any securities of the
Company other than shares of Common Stock,
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thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Exercise Price of such shares
shall be subject to adjustment from time to time in a manner
and on terms substantially identical to the provisions with
respect to the Warrant Shares contained in paragraphs (a)
through (h) above, and the provisions of this Agreement with
respect to the Warrant Shares shall apply on like terms to any
such other securities.
(j) EXPIRATION OF RIGHTS, ETC. Upon the expiration of
any Rights or conversion or exchange or exercise rights, if
any thereof shall not have been exercised, the Exercise Price
and the number of Warrant Shares purchasable upon the exercise
of each Warrant shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been
originally adjusted (or had the original adjustment not been
required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such Rights
or conversion or exchange or exercise rights and (B) such
shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such
exercise plus the aggregate consideration, if any, actually
received by the Company for the issuance, sale or grant of all
of such Rights or conversion or exchange or exercise rights
whether or not exercised, provided that no such readjustment
shall have the effect of increasing the Exercise Price or
decreasing the number of Warrant Shares purchasable upon the
exercise of each Warrant by an amount in excess of the amount
of the adjustment initially made in respect of the issuance,
sale or grant of such Rights or conversion or exchange or
exercise rights.
9.2 VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at
its option, at any time during the term of the Warrants, reduce the then
current Exercise Price to any amount deemed appropriate by the Board of
Directors of the Company.
9.3 NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant or the Exercise Price of
Warrant Shares is adjusted, as herein provided, the Company shall cause the
Warrant Agent promptly to mail to each Holder, at the sole expense of the
Company by first class mail, postage prepaid, notice of such adjustment or
adjustments and shall deliver to the Warrant Agent a certificate of a firm of
independent public accounts (who may be the regular accountants employed by
the Company) setting forth the number of Warrant Shares purchasable upon the
exercise of each Warrant and the Exercise Price of Warrant Shares after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth in reasonable detail the computations by which
such adjustment was made. The Warrant Agent shall be entitled to rely on
such certificate and shall be under no duty or responsibility with respect to
any such certificate, except to exhibit the same, from time to time, to any
Holder requesting an inspection thereof during reasonable business hours.
The Warrant Agent shall not at any time be under any duty or responsibility
to any Holder to determine whether any facts exist which may require any
adjustment of the Exercise Price or the number of Warrant Shares or other
stock or property purchasable on exercise of Warrants, or with respect to the
nature or extent of any such adjustment when made, or with respect to the
method employed in making such adjustment.
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9.4 PRESERVATION OF PURCHASE RIGHTS UPON MERGER OR
CONSOLIDATION. In case of any consolidation of the Company with or merger of
the Company into another entity, the Company or such successor entity shall
execute and deliver to the Warrant Agent an agreement, which shall be binding
on the Holders, that each Holder shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action (after
giving effect to any applicable adjustments under Section 9.1 hereof) to
purchase upon exercise of each Warrant (and in lieu of the Common Stock
issuable upon exercise of the Warrant) the kind and amount of shares and
other securities and property (including cash) which such Holder would have
owned or have been entitled to receive after the happening of such
consolidation or merger had such Warrant been exercised immediately prior to
such action. The Company shall at its sole expense mail by first class mail,
postage prepaid, to each Holder notice of the execution of any such
agreement. Such agreement shall provide for adjustments, which shall be
substantially identical to the adjustments provided for in this Section 9. In
addition, the Company shall not merge or consolidate with or into, any other
entity unless the successor entity (if not the Company), shall expressly
assume, by supplemental agreement reasonably satisfactory in form and
substance to the Warrant Agent in its sole judgment and executed and
delivered to the Warrant Agent, the due and punctual performance and
observance of each and every covenant and condition of this Agreement to be
performed and observed by the Company. The provisions of this Section 9.4
shall similarly apply to successive consolidations or mergers. The Warrant
Agent shall be under a good faith duty and responsibility to determine the
correctness of any provisions contained in any such agreement relating to the
kind or amount of shares of stock or other securities or property receivable
upon exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
9.5 STATEMENT ON WARRANTS. Irrespective of any adjustments
in the Exercise Price or the number or kind of shares purchasable upon the
exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same Exercise Price and number and kind of Warrant
Shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 10. FRACTIONAL INTERESTS. Neither the Company nor
the Warrant Agent shall be required to issue fractional Warrant Shares on the
exercise of Warrants. If more than one Warrant shall be exercised at the
same time by the same Holder, the number of full Warrant Shares which shall
be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrants so exercised. If any fraction of a Warrant
Share would, except for the provisions of this Section 10, be issuable on the
exercise of any Warrant, then the Company shall pay an amount in cash equal
to the closing price for one share of Common Stock on the date the Warrant
Certificate is presented for exercise (determined in accordance with the
second sentence of Section 9.1(e)(i) hereof), multiplied by such fraction.
Section 11. NO RIGHTS AS STOCKHOLDERS; NOTICES TO HOLDERS.
Nothing contained in this Agreement or in any of the Warrants shall be
construed as conferring upon the Holders or their transferees the right to
vote or to receive dividends or to consent or to receive notice as
stockholders in respect of any meeting of stockholders for the election of
directors of the Company or any other matter, or any rights whatsoever as
stockholders of the Company.
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In case:
(a) the Company shall authorize the issuance to all
holders of shares of Common Stock of rights, options or
warrants to subscribe for or purchase shares of Common Stock
or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all
holders of shares of Common stock of securities or assets
(other than cash dividends); or
(c) of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the
Company is required, or of the conveyance or transfer of a
substantial portion of the properties and assets of the
Company for which approval of any stockholders of the Company
is required, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a
change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange
offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed with the Warrant Agent and shall
cause to be given to each Holder at its address appearing on the Warrant
Register, at least twenty (20) days prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is
no record date, by first class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common
Stock entitled to receive any such rights, options, warrants or distribution
are to be determined, or (ii) the initial expiration date set forth in any
tender offer or exchange offer for shares of Common Stock, or (iii) the date
on which any such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up is expected to become
effective or consummated, as well as the date as of which it is expected that
holders of record of shares of Common Stock shall be entitled to exchange
such shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation, or winding up. The failure to give the notice required by this
Section 11 or any defect therein shall not affect the legality or validity of
any distribution, right, option, Warrant, reclassification, consolidation,
merger, conveyance, transfer, dissolution, liquidation, winding up or action,
or the vote upon any of the foregoing.
Section 12. PAYMENTS IN U.S. CURRENCY. All payments required
to be made hereunder shall be made in lawful money of the United States of
America.
Section 13. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
WARRANT AGENT. Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the corporation trust business of the Warrant
Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation
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would be eligible for appointment as a successor Warrant Agent under the
provisions of Section 15 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in its name; and in all such cases such Warrant Certificates
shall be fully valid and effective as provided therein and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrant Certificates
so countersigned; and in case at that time any of the Warrant Certificates
shall not have been countersigned, the Warrant Agent may countersign such
Warrant Certificates either in its prior name or in its changed name; and in
all such cases such Warrant Certificates shall be fully valid and effective
as provided therein and in this Agreement.
Section 14. APPOINTMENT OF WARRANT AGENT. The Company hereby
appoints the Warrant Agent to act as agent for the Company hereunder and in
accordance with the terms and conditions hereof, and the Warrant Agent hereby
accepts such appointment.
14.1 CONCERNING THE WARRANT AGENT. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, and no implied duties or obligations shall be
read into this Warrant Agreement against the Warrant Agent, by all of which
the Company and the Holders, by their acceptance of Warrant Certificates,
shall be bound.
14.2 CORRECTNESS OF STATEMENTS. The statements contained
herein and in the Warrant Certificates shall be taken as statements of the
Company, and the Warrant Agent assumes no responsibility for the correctness
of any of the same except statements that describe the Warrant Agent or
action taken by it. The Warrant Agent assumes no responsibility with respect
to the distribution of the Warrant Certificates or Warrants except as herein
otherwise provided.
14.3 BREACH OF COVENANTS. The Warrant Agent shall not be
responsible for any failure of the Company to comply with any of the
covenants contained in this Agreement or in the Warrant to be complied with
by the Company.
14.4 PERFORMANCE OF DUTIES. The Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys or agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent (which shall not include an employee of the Warrant Agent) appointed
with due care.
14.5 RELIANCE ON COUNSEL. Before the Warrant Agent acts or
refrains from acting, the Warrant Agent may consult at any time with legal
counsel satisfactory to it (who may be counsel for the Company), and the
Warrant Agent shall incur no liability or responsibility to the
-16-
Company or to any Holder in respect to any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
14.6 PROOF OF ACTIONS TAKEN. Whenever in the performance of
its duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed conclusively to be proved and established by a certificate
signed by any of the Chairman of the Board, the President, a Vice President,
the Treasurer or the Secretary of the Company and delivered to the Warrant
Agent; and such certificate shall be full authorization to the Warrant Agent
for any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
14.7 COMPENSATION AND INDEMNIFICATION. The Company agrees to
pay the Warrant Agent reasonable compensation for all services rendered by
the Warrant Agent in the performance of its duties under this Agreement, to
reimburse the Warrant Agent for all reasonable expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the performance of its duties under this Agreement
(including but not limited to legal fees and expenses), and to indemnify the
Warrant Agent and its officers, agents and directors for and to hold each
harmless from any and all losses, liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant Agent or any of its
agents in the performance of its duties under this Agreement, except as a
result of the Warrant Agent's gross negligence or willful misconduct as
determined in a final judgment of a court of competent jurisdiction and
authority. The Company's obligations under this Section 14.7 and any claim
arising hereunder shall survive the resignation or removal of the Warrant
Agent and the termination or discharge of the Company's obligations under
this Agreement. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company.
14.8 LEGAL PROCEEDINGS. The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or any one or more
Holders shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred or any liabilities
which may arise, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper, whether
with or without any such security or indemnity. All rights of action of any
Holder under this Agreement or under any of the Warrants may be enforced by
the Warrant Agent without the possession of any of the Warrant Certificates
or the production thereof at any trial or other proceeding relative thereto,
and any such action, suit or proceeding instituted by the Warrant Agent shall
be brought in its name as Warrant Agent, and any recovery of judgment shall
be for the ratable benefit of the Holders, as their respective rights or
interests may appear.
14.9 OTHER TRANSACTIONS IN SECURITIES OF COMPANY. The
Warrant Agent and any stockholder, director, officer or employee of the
Warrant Agent may buy, sell or deal in any of the Warrants or any other
securities of the Company or have a pecuniary interest in any transaction in
which the Company may be interested or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant
Agent under this
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Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
14.10 LIABILITY OF WARRANT AGENT. The Warrant Agent shall
act hereunder solely as agent, and its duties shall be determined solely by
the provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own negligence or bad faith.
14.11 RELIANCE ON DOCUMENTS. The Warrant Agent will not
incur any liability or responsibility to the Company or to any Holder for any
action taken in reliance on any notice, resolution, waiver, consent order,
certificate, or other paper, document or instrument reasonably believed by it
to be genuine and to have been signed, sent or presented by the proper party
or parties.
14.12 VALIDITY OF AGREEMENT. The Warrant Agent shall not be
under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Warrant
Agent) or for any of the statements of fact or recitals contained in this
Agreement or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof) or any Warrant; nor shall
the Warrant Agent by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any Warrant Shares (or
other securities) to be issued pursuant to this Agreement or any Warrant, or
as to whether any Warrant Shares (or other securities) will, when issued, be
validly issued, fully paid and nonassessable, or as to the Exercise Price or
the number or amount of Warrant Shares or other securities or any Assets or
other property issuable upon exercise of any Warrant.
14.13 INSTRUCTIONS FROM COMPANY. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the
performance of its duties hereunder from any person believed in good faith by
the Warrant Agent to be one of the Chairman of the Board, the President, a
Vice President, the Treasurer or the Secretary of the Company, and to apply
to such officers for advice or instructions in connection with its duties,
and shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer or officers or
any delay in acting while waiting for these instructions..
Section 15. CHANGE OF WARRANT AGENT. The Warrant Agent may
resign and be discharged from its duties under this Agreement by giving to
the Company thirty (30) days' written notice. The Warrant Agent may be
removed by like notice to the Warrant Agent and the Holders from the Company,
such notice to specify the date when removal shall become effective. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable
of acting, then the Company shall appoint a successor to the Warrant Agent.
If the Company shall fail to make such appointment within a period of thirty
(30) days after such removal or written notification of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by any Holder
(who shall with such notice submit his Warrant Certificate or Certificates
for inspection by the Company), then any Holder may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or such
a court, shall be a bank or trust company, in good standing, incorporated
under the laws of the United States of America or any state thereof and
having at the time of its appointment as Warrant Agent a combined capital and
surplus of at least
-18-
$100,000,000. After appointment and acceptance of such appointment in
writing, the successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the time
held by it hereunder, and shall execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file any
notice provided for in this Section 15, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor Warrant Agent, as the case
may be. In the event of such resignation or removal, the successor Warrant
Agent shall mail, by first class mail, postage prepaid, to each Holder,
written notice of such removal or resignation and the name and address of
such successor Warrant Agent.
Section 16. NOTICES. Any notice pursuant to this Agreement
by the Company or by any Holder to the Warrant Agent, shall be in writing and
shall be delivered in person or sent by registered or certified mail and
shall be deemed given upon receipt at its offices at Xxxxxx Trust & Savings
Bank, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 Attention: Xxxxxx
Xxxxxxxxxx. Any notice pursuant to this Agreement by the Warrant Agent or by
any Holder to the Company, shall be in writing and shall be delivered in
person or by confirmed facsimile transmission (plus a copy delivered by
overnight mail) or first class mail, postage prepaid at its offices at
Mercury Finance Company, 000 Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000,
Attention: Corporate Secretary, Telecopier No.: ___________________. Each
party hereto may from time to time change the address to which its notices
are to be delivered or mailed hereunder by notice to the other party.
Any notice mailed pursuant to this Agreement by the Company or
the Warrant Agent to the Holders shall be in writing and shall be mailed
first class, postage prepaid, or otherwise delivered, to such Holders at
their respective addresses in the Warrant Register. The initial address of
each Holder shall be as provided by the Company to the Warrant Agent. Any
Holder may change its address by notice to the Company and the Warrant Agent
given in accordance with this Section 16.
Section 17. CANCELLATION OF WARRANTS. In the event the
Company shall purchase or otherwise acquire Warrants, the same shall
thereupon be delivered to the Warrant Agent and be cancelled by it and
retired. The Warrant Agent shall cancel any Warrant Certificate surrendered
for exchange, substitution, transfer or exercise in whole or in part.
Section 18. SUPPLEMENTS AND AMENDMENTS. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement, the
Warrants and the Warrant Certificates without approval of any Holder, in
order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision herein, or to comply with the requirements of any national
securities exchange or The Nasdaq National Market, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and this Agreement.
Any other supplement or amendment to this Agreement may be made with the
approval of the Holders of a majority of outstanding Warrants of each series
of Warrants, voting separately as three classes; provided, however, that any
such amendment or supplement that (i) increases the
-19-
Exercise Price; (ii) decreases the number of shares of Common Stock issuable
upon exercise of a Warrant; or (iii) shortens the period during which the
Warrants may be exercised shall require the consent of each Holder of a
Warrant affected thereby. Notwithstanding anything in this Agreement to the
contrary, no supplement or amendment that changes the rights and duties of
the Warrant Agent under this Agreement will be effective against the Warrant
Agent without the execution of such supplement or amendment by the Warrant
Agent.
Section 19. SUCCESSORS. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent
shall bind and inure solely to the benefit of the Company or the Warrant
Agent and their respective successors hereunder.
Section 20. APPLICABLE LAW. This Agreement and each Warrant
issued hereunder shall be governed by and construed in accordance with the
laws of the state of Delaware without giving effect to the principles of
conflict of laws thereof, except as to the rights and obligations of the
Warrant Agent, which shall be governed by and construed in accordance with
the laws of the Sate of Illinois.
Section 21. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Warrant Agent and the Holders any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent, their
respective successors, and the Holders of the Warrants.
Section 22. COUNTERPARTS. This Agreement may be executed in
any number of counterparts; each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 23. CAPTIONS. The captions of the Sections and
subsections of this Agreement have been inserted for convenience only and
shall have no substantive effect.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above written.
MERCURY FINANCE COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
XXXXXX TRUST AND SAVINGS BANK
as Warrant Agent
By: ___________________________
Name: _________________________
Title: ________________________
-21-
No. __________ __________ Warrants
Series A
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________
or registered assigns, is the registered holder of Series A Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2001
(the "Expiration Date"), to purchase Common Stock, $___ par value per share
(the "Common Stock"), of MERCURY FINANCE COMPANY, a Delaware corporation (the
"Company"). The Warrants may be exercised at any time from 9:00 am., New
York City time, on __________ __, 1998 to 5:00 p.m., New York City time, on
the Expiration Date. Each Warrant entitles the holder upon exercise to
receive from the Company, if exercised before 5:00 p.m., New York City time,
on the Expiration Date, one fully paid and nonassessable share of Common
Stock (a "Warrant Share") at the Exercise Price (as defined in the Warrant
Agreement referred to on the reverse side hereof), payable in lawful money of
the United States of America, upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent,
but only subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY
TIME, ON __________ __, 2001 SHALL BECOME VOID.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
A-1
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this
Warrant Certificate to be duly executed.
MERCURY FINANCE COMPANY
By: __________________________
Title: _______________________
Dated: _________________________
Countersigned:
[XXXXXX TRUST AND SAVINGS BANK],
as Warrant Agent
By: _____________________________
Authorized Signatory
A-2
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring on the Expiration Date entitling
the holder on exercise to receive shares of Common Stock of the Company and
are issued or to be issued pursuant to a Warrant Agreement dated as of
__________, 1998 (the "Warrant Agreement"), duly executed and delivered by
the Company to [Xxxxxx Trust and Savings Bank], as Warrant Agent (the
"Warrant Agent"), which Warrant Agreement is hereby incorporated by reference
in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants. A copy of the Warrant Agreement may be obtained by
the holder hereof upon written request to the Company. By accepting initial
delivery, transfer or exchange of this Warrant, the duly registered holder
shall be deemed to have agreed to the terms of the Warrant Agreement as it
may be in effect from time to time, including any amendments or supplements
duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in the manner described below at
the office of the Warrant Agent. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than
the total number of Warrants evidenced hereby, there shall be issued to the
holder hereof or its assignee a new Warrant Certificate evidencing the number
of Warrants not exercised.
Payment of the Exercise Price may be made in cash by wire
transfer to the Warrant Agent for the account of the Company or by certified
or official bank check or checks to the order of the Company or by any
combination thereof.
The Warrant Agreement provides that upon the occurrence of
certain events the number of shares of Common Stock issuable upon the
exercise of each Warrant, and the Exercise Price of each Warrant, may,
subject to certain conditions, be adjusted. No fractions of a share of
Common Stock will be issued upon the exercise of any Warrant, but the Company
shall pay the cash value thereof determined as provided in the Warrant
Agreement.
Warrant Certificates, when surrendered at the office of the
Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in
the manner and subject to the limitations provided in the Warrant Agreement,
but without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
A-3
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder(s) hereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof, of any
distribution to the holder(s) hereof, and for all other purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice to the
contrary. Neither the Warrants nor this Warrant Certificate entitles any
holder hereof to any rights of a stockholder of the Company.
A-4
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this
Series A Warrant, according to the terms and conditions hereof, to the extent
of purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of
the undersigned or its assignee as indicated on the Assignment Form.
Dated: ______________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: _______________________________________________________________
(please typewrite or print in block letters)
Address: ____________________________________________________________
Signature __________________________________________________
Note: The signature must conform in all respects to name of
holder as specified on the face of this Warrant Certificate
Signature Guaranteed:
A-5
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name: ____________________________________________________________________
(please typewrite or print in block letters)
Address: _________________________________________________________________
its right to purchase __________ shares of Common Stock represented by this
Series A Warrant and does hereby irrevocably constitute and appoint
__________ Attorney, to transfer the same on the books of the Company, with
full power of substitution in the premises.
Dated: ________________________________
_______________________________________ Signature: __________________
Social Security or other identifying number Note: The signature must
of holder conform in all respects
to name of holder as
specified on the face of
this Warrant Certificate
Signature Guaranteed:
A-6
No. __________ __________ Warrants
Series B
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________
or registered assigns, is the registered holder of Series B Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2002
(the "Expiration Date"), to purchase Common Stock, $___ par value per share
(the "Common Stock"), of MERCURY FINANCE COMPANY, a Delaware corporation (the
"Company"). The Warrants may be exercised at any time from 9:00 am., New
York City time, on __________ __, 1998 to 5:00 p.m., New York City time, on
the Expiration Date. Each Warrant entitles the holder upon exercise to
receive from the Company, if exercised before 5:00 p.m., New York City time,
on the Expiration Date, one fully paid and nonassessable share of Common
Stock (a "Warrant Share") at the Exercise Price (as defined in the Warrant
Agreement referred to on the reverse side hereof), payable in lawful money of
the United States of America, upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent,
but only subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY
TIME, ON __________ __, 2002 SHALL BECOME VOID.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
B-1
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this
Warrant Certificate to be duly executed.
MERCURY FINANCE COMPANY
By: ____________________________
Title: _________________________
Dated: ______________________________
Countersigned:
[XXXXXX TRUST AND SAVINGS BANK],
as Warrant Agent
By: ________________________________
Authorized Signatory
B-2
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring on the Expiration Date entitling
the holder on exercise to receive shares of Common Stock of the Company and
are issued or to be issued pursuant to a Warrant Agreement dated as of
__________, 1998 (the "Warrant Agreement"), duly executed and delivered by
the Company to [Xxxxxx Trust and Savings Bank], as Warrant Agent (the
"Warrant Agent"), which Warrant Agreement is hereby incorporated by reference
in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants. A copy of the Warrant Agreement may be obtained by
the holder hereof upon written request to the Company. By accepting initial
delivery, transfer or exchange of this Warrant, the duly registered holder
shall be deemed to have agreed to the terms of the Warrant Agreement as it
may be in effect from time to time, including any amendments or supplements
duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in the manner described below at
the office of the Warrant Agent. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than
the total number of Warrants evidenced hereby, there shall be issued to the
holder hereof or its assignee a new Warrant Certificate evidencing the number
of Warrants not exercised.
Payment of the Exercise Price may be made in cash by wire
transfer to the Warrant Agent for the account of the Company or by certified
or official bank check or checks to the order of the Company or by any
combination thereof.
The Warrant Agreement provides that upon the occurrence of
certain events the number of shares of Common Stock issuable upon the
exercise of each Warrant, and the Exercise Price of each Warrant, may,
subject to certain conditions, be adjusted. No fractions of a share of
Common Stock will be issued upon the exercise of any Warrant, but the Company
shall pay the cash value thereof determined as provided in the Warrant
Agreement.
Warrant Certificates, when surrendered at the office of the
Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in
the manner and subject to the limitations provided in the Warrant Agreement,
but without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
B-3
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder(s) hereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof, of any
distribution to the holder(s) hereof, and for all other purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice to the
contrary. Neither the Warrants nor this Warrant Certificate entitles any
holder hereof to any rights of a stockholder of the Company.
B-4
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this
Series B Warrant, according to the terms and conditions hereof, to the extent
of purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of
the undersigned or its assignee as indicated on the Assignment Form.
Dated: ____________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: ____________________________________________________________________
(please typewrite or print in block letters)
Address: _________________________________________________________________
Signature _______________________________________________________
Note: The signature must conform in all respects to name of
holder as specified on the face of this Warrant Certificate
Signature Guaranteed:
B-5
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name: _______________________________________________________________________
(please typewrite or print in block letters)
Address: ____________________________________________________________________
its right to purchase __________ shares of Common Stock represented by this
Series B Warrant and does hereby irrevocably constitute and appoint
__________ Attorney, to transfer the same on the books of the Company, with
full power of substitution in the premises.
Dated: ____________________________________
___________________________________________ Signature: ___________________
Social Security or other identifying number Note: The signature
of holder must conform in all
respects to name of
holder as specified
on the face of this
Warrant Certificate
Signature Guaranteed:
B-6
No. __________ __________ Warrants
Series C
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________
or registered assigns, is the registered holder of Series C Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2003
(the "Expiration Date"), to purchase Common Stock, $___ par value per share
(the "Common Stock"), of MERCURY FINANCE COMPANY, a Delaware corporation (the
"Company"). The Warrants may be exercised at any time from 9:00 am., New
York City time, on __________ __, 1998 to 5:00 p.m., New York City time, on
the Expiration Date. Each Warrant entitles the holder upon exercise to
receive from the Company, if exercised before 5:00 p.m., New York City time,
on the Expiration Date, one fully paid and nonassessable share of Common
Stock (a "Warrant Share") at the Exercise Price (as defined in the Warrant
Agreement referred to on the reverse side hereof), payable in lawful money of
the United States of America, upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent,
but only subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY
TIME, ON __________ __, 2003 SHALL BECOME VOID.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
C-1
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this
Warrant Certificate to be duly executed.
MERCURY FINANCE COMPANY
By: _________________________
Title: ______________________
Dated: ___________________________
Countersigned:
[XXXXXX TRUST AND SAVINGS BANK],
as Warrant Agent
By: _______________________________
Authorized Signatory
C-2
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring on the Expiration Date entitling
the holder on exercise to receive shares of Common Stock of the Company and
are issued or to be issued pursuant to a Warrant Agreement dated as of
__________, 1998 (the "Warrant Agreement"), duly executed and delivered by
the Company to [Xxxxxx Trust and Savings Bank], as Warrant Agent (the
"Warrant Agent"), which Warrant Agreement is hereby incorporated by reference
in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants. A copy of the Warrant Agreement may be obtained by
the holder hereof upon written request to the Company. By accepting initial
delivery, transfer or exchange of this Warrant, the duly registered holder
shall be deemed to have agreed to the terms of the Warrant Agreement as it
may be in effect from time to time, including any amendments or supplements
duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in the manner described below at
the office of the Warrant Agent. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than
the total number of Warrants evidenced hereby, there shall be issued to the
holder hereof or its assignee a new Warrant Certificate evidencing the number
of Warrants not exercised.
Payment of the Exercise Price may be made in cash by wire
transfer to the Warrant Agent for the account of the Company or by certified
or official bank check or checks to the order of the Company or by any
combination thereof.
The Warrant Agreement provides that upon the occurrence of
certain events the number of shares of Common Stock issuable upon the
exercise of each Warrant, and the Exercise Price of each Warrant, may,
subject to certain conditions, be adjusted. No fractions of a share of
Common Stock will be issued upon the exercise of any Warrant, but the Company
shall pay the cash value thereof determined as provided in the Warrant
Agreement.
Warrant Certificates, when surrendered at the office of the
Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in
the manner and subject to the limitations provided in the Warrant Agreement,
but without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
C-3
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder(s) hereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof, of any
distribution to the holder(s) hereof, and for all other purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice to the
contrary. Neither the Warrants nor this Warrant Certificate entitles any
holder hereof to any rights of a stockholder of the Company.
C-4
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this
Series C Warrant, according to the terms and conditions hereof, to the extent
of purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of
the undersigned or its assignee as indicated on the Assignment Form.
Dated: _________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: ____________________________________________________________________
(please typewrite or print in block letters)
Address: _________________________________________________________________
Signature _______________________________________________________
Note: The signature must conform in all respects to name
of holder as specified on the face of this Warrant
Certificate
Signature Guaranteed:
C-5
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name: ____________________________________________________________________
(please typewrite or print in block letters)
Address: _________________________________________________________________
its right to purchase __________ shares of Common Stock represented by this
Series C Warrant and does hereby irrevocably constitute and appoint
__________ Attorney, to transfer the same on the books of the Company, with
full power of substitution in the premises.
Dated: ____________________________________
___________________________________________ Signature: ___________________
Social Security or other identifying number Note: The signature
of holder must conform in all
respects to name of
holder as specified
on the face of this
Warrant Certificate
Signature Guaranteed:
C-6
