THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS
SPECIFIED HEREIN. NEITHER THE RIGHTS REPRESENTED BY THIS WARRANT NOR THE SHARES
ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN REGISTERED FOR OFFER OR SALE UNDER
THE SECURITIES ACT OF 1933. SUCH RIGHTS AND SHARES MAY NOT BE SOLD OR OFFERED
FOR SALE IN WHOLE OR IN PART EXCEPT IN ACCORDANCE WITH THE APPLICABLE PROVISIONS
HEREOF.
TFC ENTERPRISES, INC.
WARRANT (NO. 2) TO PURCHASE COMMON STOCK
APRIL 4, 1997
TFC ENTERPRISES, INC., a Delaware corporation, its successors or
assigns (the "Company"), hereby certifies that, for value received, GENERAL
ELECTRIC CAPITAL CORPORATION, a New York corporation, or its registered assigns
(the "WARRANT HOLDER" or collectively the "WARRANT HOLDERS"), is entitled,
subject to the terms set forth below, to purchase from the Company upon
surrender of this Warrant, at any time or times on or after April 4, 1997 but
not after 5:00 p.m., prevailing Eastern Standard or Daylight Time, on the
Expiration Date (as such term is hereinafter defined), 567,640 fully paid and
nonassessable shares of Common Stock (as such term is hereinafter defined) of
the Company (as adjusted from time to time as provided in this Warrant, the
"WARRANT SHARES"), at a purchase price per share equal to the Warrant Exercise
Price (as such term is hereinafter defined), in lawful money of the United
States of America. The Company represents and warrants, as of the date hereof,
that (a) there are 11,290,308 shares of the Common Stock issued and outstanding
and (b) Exhibit D sets forth all options or other rights to acquire any shares
of the Common Stock.
DEFINITIONS
SECTION 1. (a) DEFINITIONS. The following words and terms as used in
this Warrant shall have the following meanings, unless the context in which any
such term is used herein clearly requires a different meaning:
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person.
"Business Day," except as otherwise provided herein, means a day
other than a Saturday, a Sunday or a day on which banking institutions in the
Commonwealth of Virginia are authorized or obligated by law or required by
executive order to be closed.
"Common Stock" means all shares now or hereafter authorized of the
Company's Common Stock, $.01 par value per share, and stock of any other class
into which such shares may hereafter be changed.
"Convertible Securities" mean any securities issued by the Company
which are convertible into or exchangeable for, directly or indirectly, shares
of Common Stock.
"Expiration Date" means March 31, 2002.
"Market Price" means the average of the closing prices of Common
Stock sales on all domestic exchanges (including the NASDAQ National Market
System) on which the Common Stock may at the time be listed, or, if there shall
have been no sales on any such exchange on any day, the average of the reported
bid prices on all such exchanges at the end of such day, or, if on any day the
Common Stock shall not be so listed, the average of the representative bid
prices quoted in the NASDAQ System as of 3:30 P.M., Eastern Standard Time, or if
on any day the Common Stock shall not be quoted in the NASDAQ System, the
average of the high and low bid prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of 30 consecutive Business Days (or such other period as shall be
specified herein) prior to the date as of which "Market Price" is being
determined; provided, that if the Common Stock is listed on any domestic
exchange, the term "business days" as used in this sentence shall mean business
days on which such exchange is open for trading. If at any time the Common Stock
is not listed on any domestic exchange or quoted in the NASDAQ System or the
domestic over-the-counter market, the "Market Price" shall be deemed to be the
higher of (i) the book value per share thereof, as determined by any firm of
independent public accountants (which may include the independent auditors
engaged by the Company) of recognized standing selected by the Board of
Directors of the Company and acceptable to the Warrant Holder in its reasonable
discretion (the Warrant Holder agreeing that the Company's current independent
auditors and any other "Big 6" accounting firms engaged by the Company will be
acceptable), as of the last day of which such determination shall have been
made, or (ii) the fair value per share thereof reasonably determined in good
faith by the Board of Directors of the Company as of the date which is within 15
days of the date as of which the determination is to be made (in determining the
fair value per share thereof, the Board of Directors shall consider stock market
valuations and price to earnings ratios of comparable companies in similar
industries).
"Person" means an individual or corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant Exercise Price" shall initially be $1.00 per share and
shall be adjusted and readjusted from time to time as provided in this Warrant.
"Warrant Share Holder" means any holder of the Warrant Shares.
(B) OTHER DEFINITIONAL PROVISIONS. Except as otherwise
specified herein:
(i) all references herein (A) to any
Person shall be deemed to include such Person's successors and assigns, and (B)
to any applicable law defined or referred to herein, shall be deemed references
to such applicable law as the same may have been or may be amended or
supplemented from time to time.
(ii) Whenever used in this Warrant,
the words "herein," "hereof" and "hereunder," and words of similar import, shall
refer to this Warrant as a whole and not to any provision of this Warrant, and
the words "Section" and "Exhibit" shall refer to Sections of, and Exhibits to,
this Warrant unless otherwise specified.
(iii) When the context so requires,
the neuter gender includes the masculine or feminine, and the singular number
includes the plural, and vice versa.
SECTION 2. EXERCISE OF WARRANT. The rights represented by this
Warrant may be exercised by the Warrant Holder then registered on the books of
the Company, in whole or from time to time in part (except that this Warrant
shall not be exercisable as to a fractional share) by
(i) delivery of a written notice, in
the form of the Subscription Notice attached as Exhibit A hereto, of such
holder's election to exercise this Warrant, which notice shall specify a number
of Warrant Shares to be purchased not less than 1,000 (as adjusted from time to
time as provided herein),
(ii) payment to the Company of an amount
equal to the Warrant Exercise Price multiplied by the number of Warrant Shares
as to which the Warrant is then being exercised (plus any applicable issue or
transfer taxes) in cash or by certified or official bank check,
(iii) surrender of this Warrant, properly
endorsed, at the principal office of the Company in Norfolk, Virginia, as set
forth in Section 19 hereof (or at such other agency or office of the Company as
the Company may designate by notice to the holder hereof), and
(iv) if the Warrant Shares issuable upon
the exercise of the rights represented by this Warrant have not been registered
under the Securities Act, delivery to the Company by such holder of a letter in
the form of Exhibit B hereto;
provided, that if such Warrant Shares are to be issued in any name other than
that of the registered holder of this Warrant, such issuance shall be deemed a
transfer and the provisions of Section 15 hereof shall be applicable. In the
event of any exercise of the rights represented by this Warrant, a certificate
or certificates for the Warrant Shares so purchased, registered in the name
directed by the holder, shall be delivered as directed by the holder within a
reasonable time, not exceeding 15 Business Days, after such exercise. Unless the
rights represented by this Warrant shall have expired or have been fully
exercised, the Company shall issue a new Warrant identical in all respects to
the Warrant exercised except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under the Warrant
exercised, less the number of Warrant Shares with respect to which such Warrant
was exercised. The person in whose name any certificate for Warrant Shares is
issued upon the exercise of this Warrant shall for all purposes be deemed to
have become the holder of record of such Warrant Shares immediately prior to the
close of business on the date on which the Warrant was surrendered and payment
of the amount due in respect of such exercise and any applicable taxes was made,
irrespective of the date of delivery of such share certificate, except that, if
the date of such surrender and payment is a date when the stock transfer books
of the Company are properly closed, such person shall be deemed to have become
the holder of such Warrant Shares at the opening of business on the next
succeeding date on which the stock transfer books are open.
SECTION 3. COVENANTS AS TO COMMON STOCK. The Company covenants
and agrees that:
(a) All Warrant Shares which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
validly issued, fully paid and nonassessable;
(b) During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock, free of
preemptive rights, to provide for the exercise of the rights then represented by
this Warrant, and that the par value of such shares will at all times be less
than the applicable Warrant Exercise Price. Before taking any action that would
cause an adjustment reducing the Warrant Exercise Price below the then par
value, if any, of the shares of Common Stock issuable upon exercise of this
Warrant, the Company will take any corporate action that may be necessary in
order that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Warrant Exercise
Price; and
(c) If any shares of Common Stock reserved or
to be reserved to provide for the exercise of the rights then represented by
this Warrant require registration with or approval of any governmental authority
under any federal law (other than the Securities Act) or under any state law
before such shares may be validly issued, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
SECTION 4. ADJUSTMENT OF WARRANT EXERCISE PRICE UPON STOCK SPLITS,
DIVIDENDS, DISTRIBUTIONS AND COMBINATIONS; ADJUSTMENT OF NUMBER OF WARRANT
SHARES.
(a) In case the Company shall subdivide at any
time its outstanding shares of Common Stock into a greater number of shares or
issue a stock dividend or make a distribution with respect to outstanding shares
of Common Stock or Convertible Securities, payable in Common Stock or in
Convertible Securities which are convertible with no additional consideration,
the Warrant Exercise Price in effect immediately prior to such subdivision or
stock dividend or distribution shall be proportionately reduced (treating for
such purpose any such shares of Convertible Securities outstanding or payable as
being the number of shares of Common Stock issuable upon their conversion); and,
conversely, in the case that the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the Warrant Exercise
Price in effect immediately prior to such combination shall be proportionately
increased.
(b) Upon each adjustment of the
Warrant Exercise Price as provided in this Section 4, the Warrant Holder shall
thereafter be entitled to purchase, at the Warrant Exercise Price resulting from
such adjustment, the number of shares of Common Stock obtained by multiplying
the Warrant Exercise Price in effect immediately prior to such adjustment by the
number of shares of Common Stock purchasable pursuant hereto immediately prior
to such adjustment, and dividing the product thereof by the Warrant Exercise
Price after such adjustment.
SECTION 5. ADJUSTMENT OF WARRANT EXERCISE PRICE UPON CERTAIN
ISSUANCES OR SALES OF COMMON STOCK.
(a) Whenever the Company shall issue, sell or
otherwise distribute any shares of its Common Stock (except as provided for in
Section 6) and the amount of consideration per share is less than the Market
Price in effect immediately prior to the time of such issuance or sale, then,
forthwith upon such issue or sale, and thereafter successively upon each such
issue, the Warrant Exercise Price shall be reduced to the amount determined by
multiplying the Warrant Exercise Price in effect immediately prior to the time
of such issue or sale by a fraction, whose numerator shall be (i) the sum of (x)
the number of shares of Common Stock outstanding immediately prior to such issue
or sale multiplied by the current Market Price immediately prior to such issue
or sale, and (y) the consideration received by the Company upon such issue or
sale, and whose denominator shall be (ii) the total number of shares of Common
Stock outstanding immediately after such issue or sale multiplied by the current
Market Price immediately prior to such issue or sale.
(b) For the purposes of this Section 5, the
following clauses (i) to (v), inclusive, shall also be applicable:
(i) in case at any time the Company
shall in any manner grant any rights to subscribe for any rights or options to
purchase any shares of Common Stock or any Convertible Securities, whether or
not such rights or options or the rights to convert or exchange any such
Convertible Securities are immediately exercisable, and the purchase price per
share for which Common Stock is issuable upon the exercise of such rights or
options or upon conversion or exchange of such rights or options or upon
conversion or exchange of such Convertible Securities (determined by dividing
(x) the total amount, if any, received or receivable by the Company as
consideration for the granting of all such rights or options, plus the minimum
aggregate amount of additional consideration payable to the Company upon the
exercise of all such rights or options, plus, in the case of such Convertible
Securities, the average aggregate amount of additional consideration, if any,
payable upon the conversion or exchange thereof, by (y) the maximum aggregate
number of shares of Common Stock issuable upon the exercise of such rights or
options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such rights or options) shall be less than the
Market Price in effect immediately prior to the time of the granting of such
rights or options, then the maximum aggregate number of shares of Common Stock
issuable upon the exercise of such rights or options or upon conversion or
exchange of the total maximum amount of such Convertible Securities issuable
upon the exercise of such rights or options shall be deemed (as of the date of
granting of such rights or options) to be outstanding and to have been issued
for such price per share. No further adjustments of the Warrant Exercise Price
shall be made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such rights or options or upon the actual issue of
such Common Stock upon conversion or exchange of such Convertible Securities,
except as otherwise provided in clause (iii) below;
(ii) in case at any time the Company
shall issue or sell in any manner any Convertible Securities, whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
purchase price per share for which Common Stock is issuable upon such conversion
or exchange (determined by dividing (x) the total amount received or receivable
by the Company as consideration for the issue or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (y) the
maximum aggregate number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the Market
Price in effect immediately prior to the time of such issue or sale, then the
maximum aggregate number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be deemed (as of the date of
the issue or sale of such Convertible Securities) to be outstanding and to have
been issued for such price per share, provided that, except as otherwise
specified in clause (iii) below, (a) no further adjustment of the Warrant
Exercise Price shall be made upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities, and (b) if any such issue
or sale of such Convertible Securities is made upon exercise of any rights to
subscribe for or to purchase or upon exercise of any option to purchase any such
Convertible Securities for which adjustments of the Warrant Exercise Price have
been or are to be made pursuant to other provisions of this Section 5, no
further adjustment of the Warrant Exercise Price shall be made by reason of such
issue or sale;
(iii) if the purchase price or
number of shares purchasable provided for in any right or option referred to in
clause (i) above, or the rate at which any Convertible Securities referred to in
clause (i) or (ii) above are convertible into or exchangeable for Common Stock,
shall change at any time (other than under, or by reason of, similar provisions
contained in such securities designed to protect against dilution for which
provision for adjustments in the Warrant Exercise Price are provided for in this
Warrant), the Warrant Exercise Price then in effect hereunder shall forthwith be
readjusted to such Warrant Exercise Price as would have obtained had the
adjustments made upon the issuance of such rights, options or Convertible
Securities been made upon the basis of the changed terms; and on the expiration
of any such option or right referred to in clause (i) above or the termination
of any such right to convert or exchange such Convertible Securities referred to
in clause (i) or (ii) above, the Warrant Exercise Price then in effect hereunder
shall forthwith be readjusted to such Warrant Exercise Price as would have
obtained had the adjustments made upon the issuance of such rights or options or
Convertible Securities have been made upon the basis of the issuance of only the
number of shares of Common Stock, if any, theretofore actually delivered upon
the exercise of such rights or options or upon the conversion or exchange of
such Convertible Securities;
(iv) the cash consideration received
for any shares of Common Stock or Convertible Securities or any rights or
options to purchase any such Common Stock or Convertible Securities issued or
sold shall be deemed to be the amount received therefor, before deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed in connection therewith; in case any shares of
Common Stock or Convertible Securities or any rights or options to purchase any
such Common Stock or Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the consideration other than cash
(including any non-cash consideration received in respect of any acquisition by
the Company of substantially all of the stock or assets of another entity)
received by the Company for such shares shall be deemed to be the value of such
consideration as determined reasonably and in good faith by the Board of
Directors of the Company; and
(v) the number of shares of Common
Stock outstanding at any given time shall not include such shares owned or held
by or for the account of the Company; but the transfer from the Company of any
such shares so owned or held shall be considered to be an issue or sale of
Common Stock for the purposes of this Section 5.
(c) If the Company shall distribute to all
holders of its Common Stock evidence of its indebtedness or assets, then in each
such case the Warrant Exercise Price in effect immediately prior to such
distribution shall be adjusted so that the same shall equal the price determined
by multiplying the Warrant Exercise Price in effect immediately prior to the
date of such distribution by a fraction whose numerator shall be the Market
Price per share of Common Stock on the effective date of distribution less the
then fair market value per share (as reasonably determined by the Board of
Directors of the Company) of the assets or evidences of indebtedness so
distributed and whose denominator shall be such Market Price per share of the
Common Stock. Such adjustment shall be made whenever any such distribution is
made and shall be retroactively effective as of immediately after the record
date for the determination of stockholders entitled to receive such
distribution.
(d) If the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (x) to receive a
dividend or other distribution of Common Stock, or (y) to receive rights or
options to subscribe for Common Stock or Convertible Securities, then, for
purposes of this Warrant, such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right or option of subscription or purchase.
(e) Upon each adjustment of the Warrant
Exercise Price as provided in this Section 5, the Warrant Holder shall
thereafter be entitled to purchase, at the Warrant Exercise Price resulting from
such adjustment, the number of shares of Common Stock obtained by multiplying
the Warrant Exercise Price in effect immediately prior to such adjustment by the
number of shares of Common Stock purchasable pursuant hereto immediately prior
to such adjustment, and dividing the product thereof by the Warrant Exercise
Price after such adjustment.
SECTION 6. REORGANIZATION, RECLASSIFICATION, ETC. In case of any
capital reorganization, or of any reclassification of the capital stock, of the
Company (other than a change in par value or from a par value to no par value or
from no par value to a par value or as a result of a split-up or combination) or
in case of the consolidation or merger of the Company with or into any other
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in the Common Stock being
changed into, or exchanged for, stock or other securities or property of any
other Person), or the sale of all or substantially all of the assets of the
Company to another corporation shall be effected, or a share exchange shall be
effected by the Company with another corporation or Person, or the liquidation
of the Company, or any other event similar to any of the foregoing events (any
of the foregoing, a "Reorganization Event"), then, this Warrant, upon exercise
after such Reorganization Event, shall entitle the Warrant Holder to purchase
the kind and number of shares of stock or other securities or property of the
Company, or of the Person resulting from such Reorganization Event, to which the
Warrant Holder would have been entitled if he had exercised the Warrant in full
immediately prior to such Reorganization Event; and upon any Reorganization
Event, appropriate provision shall be made with respect to the rights and
interests of the Warrant Holder to the end that the provisions hereof
(including, without limitation, provisions for the term of the Warrant,
adjustment of the Warrant Exercise Price and of the number of shares purchasable
upon the exercise of this Warrant) shall be applicable thereafter, as nearly as
may be in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of the rights represented hereby. The Company
shall not effect any Reorganization Event unless prior to, or simultaneously
with, the consummation thereof the successor Person (if other than the Company)
resulting from such Reorganization Event shall assume by written instrument
executed and mailed or delivered to the Warrant Holder at the address of such
holder appearing on the books of the Company, the obligation to deliver to such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to purchase.
SECTION 7. NOTICE OF ADJUSTMENT OF WARRANT EXERCISE PRICE AND
NUMBER OF WARRANT SHARES. Upon any adjustment of the Warrant Exercise Price or
the number of Warrant Shares purchasable hereunder, the Company shall notify the
Warrant Holder of the Warrant Exercise Price and number of Warrant Shares in
effect after such adjustment, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
SECTION 8. COMPUTATION OF ADJUSTMENTS. Upon each computation of an
adjustment in the Warrant Exercise Price and the number of shares which may be
subscribed for and purchased upon exercise of this Warrant, the Warrant Exercise
Price shall be computed to the nearest cent (i.e., fractions of .5 of a cent, or
greater, shall be rounded to the next highest cent) and the number of shares
which may be subscribed for and purchased upon exercise of this Warrant shall be
calculated to the nearest whole share (i.e., fractions of one half of a share,
or greater, shall be treated as being a whole share). No such adjustment shall
be made, however, if the change in the Warrant Exercise Price would be less than
$.01 per share, but any such lesser adjustment shall be made at the time and
together with the next subsequent adjustment which, together with any
adjustments carried forward, shall amount to $.01 per share or more.
SECTION 9. NOTICE OF CERTAIN EVENTS. In case at any time:
(a) the Company shall declare any dividend or
distribution in respect of its Common Stock payable in Common Stock or
Convertible Securities;
(b) the Company shall offer for subscription pro
rata exclusively to the holders of its Common Stock any additional shares of
stock of any class or other rights;
(c) there shall be any capital reorganization,
or reclassification of the capital stock, of the Company, or consolidation or
merger of the Company with, or sale of all or substantially all of its assets
to, another Person; or
(d) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in any one or more of the above-referenced cases, the Company
shall give to the Warrant Holder (i) at least twenty (20) days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution, or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause (i) shall also
specify, in the case of such dividend, distribution or subscription rights, the
date on which holders of capital stock shall be entitled thereto, and such
notice in accordance with the foregoing clause (ii) shall also specify the date
on which the holders of capital stock shall be entitled to exchange their
capital stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be.
SECTION 10. NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective
of any adjustment in the Warrant Exercise Price or the number of shares of
Common Stock issuable upon exercise hereof, this Warrant, whether theretofore or
thereafter issued or reissued, may continue to express the same price and number
of shares as are stated herein, and the Warrant Exercise Price and such number
of shares specified herein shall be deemed to have been so adjusted.
SECTION 11. REGISTRATION RIGHTS. The initial holder of this
Warrant, and any assignee thereof, shall have the registration rights with
respect to the Warrant Shares set forth in that certain Amended and Restated
Registration Rights Agreement of even date herewith by and between the Company
and such initial holder, a copy of which is attached hereto as Exhibit C.
SECTION 12. TAXES. The Company shall not be required to pay any tax
or taxes attributable to the initial issuance of the Warrant Shares or any
transfer taxes involved in the issue or delivery of any certificates for Warrant
Shares in a name other than that of the initial Warrant Holder or upon any
transfer of this Warrant.
SECTION 13. WARRANT HOLDER NOT DEEMED A SHAREHOLDER; INFORMATION;
RIGHTS OFFERINGS.
(a) No Warrant Holder, as such, shall be
entitled to vote or receive dividends or be deemed the holder of shares of the
Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon a Warrant Holder, as such, any of the rights of a
shareholder of the Company or any right to vote, give or withhold consent to any
corporate action, or receive dividends prior to the issuance of record to a
Warrant Holder of the Warrant Shares to which he is then entitled to receive
upon the due exercise of this Warrant.
(b) Notwithstanding anything to the contrary
contained herein (i) so long as this Warrant or any portion hereof is
outstanding, a Warrant Holder shall be entitled to receive from the Company
copies of all annual financial statements generated by the Company, including
but not limited to the annual audited financial statements of the Company, and
any and all other notices and information provided, or required by applicable
law or regulation to be provided, by the Company to its shareholders generally,
and (ii) if the Company should offer to all of the Company's shareholders the
exclusive right to purchase any securities of the Company, then all shares of
Common Stock that are subject to this Warrant shall be deemed to be outstanding
and owned by the Warrant Holder solely for the purposes thereof, and the Warrant
Holder shall be entitled to participate in such rights offering.
(c) No provision hereof, in the absence of
affirmative action by the Warrant Holder to purchase shares of Common Stock, and
no mere enumeration herein of the rights or privileges of the Warrant Holder,
shall give rise to any liability of such Warrant Holder for the purchase price
of any Warrant Shares or as a shareholder of the Company, whether such liability
is asserted by the Company or otherwise.
SECTION 14. PREEMPTIVE RIGHTS. The Company shall not grant any
preemptive rights with respect to any of its capital stock without the prior
written consent of the Warrant Holder.
SECTION 15. TRANSFER; OPINIONS OF COUNSEL; RESTRICTIVE LEGENDS.
(a) This Warrant and any Warrant Shares shall be
registered on the books of the Company, and a copy of it shall be kept by the
Company at its principal office set forth in Section 19 hereof.
(b) Subject to the provisions of this Section
15, this Warrant may be transferred, in whole or in part, to any Person or
business entity, by presentation of this Warrant to the Company at the office of
the Company set forth in Section 19 hereof, with written instructions for such
transfer. Upon such presentation for transfer, the Company shall promptly
execute and deliver a new Warrant or Warrants in the form hereof in the name of
the assignee or assignees and in the denominations specified in such
instructions.
(c) The Company shall pay all expenses incurred
by it (but not those incurred by the Warrant Holder or Warrant Share Holder, as
applicable) in connection with the preparation, issuance and delivery of
Warrants or the Warrant Shares under this Section 15.
(d) Prior to any sale, transfer or other
disposition of this Warrant or the Warrant Shares, as the case may be, the
Warrant Holder or Warrant Share Holder, as applicable, will give ten (10)
Business Days' notice to the Company of such Warrant Holder's or Warrant Share
Holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer and, absent registration under
the Securities Act of the securities relating to such proposed transfer, shall
be accompanied by an opinion, addressed to the Company and reasonably
satisfactory in form and substance to it, of counsel experienced in such matters
for such Warrant Holder or Warrant Share Holder, stating whether, in the opinion
of such counsel, such transfer will be a transaction exempt from registration
under the Securities Act.
(e) If such sale, transfer or other disposition
is subject to registration under the Securities Act, or may in the reasonable
opinion of such counsel be effected without registration under the Securities
Act, such Warrant Holder or Warrant Share Holder shall thereupon be entitled to
transfer this Warrant or the Warrant Shares, as the case my be, in accordance
with the terms of the notice delivered by such Warrant Holder or Warrant Share
Holder to the Company. In the absence of such registration under the Securities
Act, if in the opinion of such counsel such transfer may not be effected without
registration under the Securities Act, such Warrant Holder or Warrant Share
Holder shall not be entitled to so transfer this Warrant or the Warrant Shares,
as the case may be, until such time as the foregoing conditions to transfer are
fulfilled.
(f) Subject to the provisions of this Section
15, the Warrant Holder may at any time transfer this Warrant or the Warrant
Shares, as the case may be, to an Affiliate of the Warrant Holder.
(g) Each certificate for Warrant Shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Securities Act, shall bear the
following legend (and any additional legend or legends required by any
securities exchange upon which such Warrant Shares may, at the time of such
exercise, be listed) on the face thereof:
The shares of stock represented by this certificate
have not been registered under the Securities Act of 1933, as
amended, or under the securities laws of any state. The shares may
not be sold, transferred, pledged or hypothecated in the absence of
an effective registration statement under the Securities Act of
1933, as amended, and such registration or qualification as may be
necessary under the securities laws of any state, or an opinion of
counsel reasonably satisfactory to the Company that such
registration or qualification is not required.
The shares of stock represented by this certificate are
held subject to the conditions as set forth in a certain Warrant to
Purchase Common Stock dated April ____, 1997, pursuant to which such
shares were initially issued. A copy of such Warrant to Purchase
Common Stock is on file at the principal office of the Company.
SECTION 16. EXCHANGE OF WARRANT; NO REDEMPTION.
(a) This Warrant is divisible into warrants of
smaller denominations or fractional warrants, and may be exchanged upon the
surrender hereof, accompanied by written instructions with respect to such
exchange, by the Warrant Holder at the office of the Company set forth in
Section 19 hereof for new Warrants of like provisions representing in the
aggregate the right to subscribe for and purchase the number of shares which may
be subscribed for and purchased hereunder from time to time after giving effect
to all the provisions hereof.
(b) This Warrant may not be called or redeemed
by the Company without the express written consent of the Warrant Holder.
SECTION 17. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this
Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue
and deliver, in exchange and substitution for and upon cancellation of the
mutilated Warrant, or in lieu of and substitution for the Warrant lost, stolen
or destroyed, a new Warrant of like tenor and representing an equivalent number
of Warrant Shares, but only upon receipt of evidence satisfactory to the Company
in its reasonable discretion (which, in the appropriate instance, may include a
reasonable certification) from the applicable Warrant Holder of such loss, theft
or destruction of such Warrant and, if requested, indemnity also satisfactory to
it in its reasonable discretion. Applicants for such substitute Warrant shall
also pay such reasonable charges as the Company may prescribe relating to
issuance of such new Warrant. Further, applicants for such substitute Warrant,
other than General Electric Capital Corporation, shall also comply with such
other reasonable assurances to protect the Company, including without
limitation, a request to provide an indemnity bond sufficient in the reasonable
judgment of the Company to protect it from and against any loss that it may
suffer arising out of or relating to the issuance of a replacement Warrant. Any
such new Warrant shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be enforceable at any time by anyone.
SECTION 18. REPRESENTATIONS OF WARRANT HOLDER. The Warrant
Holder, by the acceptance hereof, represents that:
(a) It is acquiring this Warrant for its own
account for the purpose of investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act.
(b) It understands that this Warrant at the time
of issuance will not be registered under the Securities Act on the ground that
the sale provided for in this Warrant and the issuance of securities hereunder
is exempt from registration under the Securities Act and that the Company's
reliance on such exemption is predicated in part on Warrant Holder's
representations set forth herein.
(c) It has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of Warrant Holder's investment in the Warrant, Warrant Holder has the
ability to bear the economic risks of such investment, and Warrant Holder has no
need for liquidity with respect to this Warrant.
(d) It understands that this Warrant may not be
sold, transferred, or otherwise disposed of without registration under the
Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering this Warrant or an available exemption
from registration under the Securities Act, this Warrant may need to be held
indefinitely.
(e) It represents that the Warrant Holder is an
"accredited investor" as that term is defined in Rule 501 promulgated by the
Commission pursuant to the Securities Act.
(f) It has obtained, in its judgment, sufficient
information from the Company to evaluate the merits and risks of an investment
in this Warrant.
SECTION 19. NOTICE. All notices and other communications under this
Warrant shall be (a) in writing (which shall include communications by telex or
other facsimile transmission, promptly construed in writing), (b) sent by
registered or certified mail, postage prepaid, return receipt requested, or
delivered by hand, and (c) be given at the following respective addresses and
telecopier and telephone numbers and to the attention of the following Persons:
(i) if to the Company, to it at:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇ ▇. Paris, Esquire
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Warrant Holder, to him at:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Auto Financial Services
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Williams, Mullen, Christian & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address, telecopier or telephone number or to the
attention of such other person as the party to which such information pertains
may hereafter specify for the purpose in a notice to the other party.
SECTION 20. JUDICIAL PROCEEDINGS. Any judicial proceeding brought
against the Company with respect to this Warrant may be brought in any court of
competent jurisdiction in the Commonwealth of Virginia, and, by execution and
delivery of this Warrant, the Company and the Warrant Holder (a) accept,
generally and unconditionally, the nonexclusive jurisdiction of such courts and
any related appellate courts, and (b) irrevocably waive any objection it may now
or hereafter have as to the venue of any such suit, action or proceedings
brought in such court or that such court is an inconvenient forum. Nothing
herein shall affect the right to serve process in any manner permitted by law or
shall limit the right of the Warrant Holder to bring proceedings against the
Company in the courts of any other jurisdiction.
SECTION 21. MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged, or terminated only by an instrument in writing
signed by the party or holder hereof against which enforcement of such change,
waiver, discharge or termination is sought. The headings in this Warrant are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Warrant shall be interpreted, construed and enforced in accordance
with the laws of the Commonwealth of Virginia, exclusive, however, of such
Commonwealth's rules respecting the choice of law.
SECTION 22. DATE. The date of this Warrant is as of April 4, 1997.
This Warrant, in all events, shall be wholly void and of no effect after the
close of business on the Expiration Date, except that notwithstanding any other
provisions hereof, the provisions of Section 15 shall continue in full force and
effect after such date as to any Warrant Shares issued on or prior to the
Expiration Date upon the exercise of this Warrant.
[ Intentionally left blank ]
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its duly authorized officers and its corporate seal to be hereunto
affixed as of the ____ day of April, 1996.
TFC ENTERPRISES, INC.
By:____________________
Name:__________________
Title:_________________
ATTEST:
By:______________________________
Name:___________________________
Title:____________________________
ACCEPTED AND AGREED:
GENERAL ELECTRIC CAPITAL CORPORATION
0By:_____________________________
Name:__________________________
Title:___________________________
EXHIBIT A
WARRANT (NO. 2)
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF HE DESIRES
TO EXERCISE THIS WARRANT.
TFC ENTERPRISES, INC.
The undersigned hereby exercises the right to purchase _____ Warrant
Shares covered by this Warrant according to the conditions thereof and herewith
makes payment of $______________, the aggregate Warrant Exercise Price of such
Warrant Shares, in full.
--------------------------------
DATE:__________________________
EXHIBIT B
Address:
------------------------------
------------------------------
Attention: President
RE: Exercise of Warrant (No. 2), Dated as of April ____, 1997
Dear Sirs:
In connection with the undersigned's purchase of _____ shares of the
Common Stock of TFC Enterprises, Inc., upon exercise of the Warrant therefor
(the "Purchased Shares"), the undersigned confirms and agrees as follows:
1. As the purchaser of the Purchased Shares in a transaction not
registered under the Securities Act of 1933 (the "Act"), the undersigned is
purchasing such Purchased Shares for its own account for investment and (subject
to the disposition of its property being at all times within its control) not
with a view to any resale, distribution or other disposition thereof; and the
undersigned is proceeding on the assumption that it must bear the economic risk
of the investment for an indefinite period, since the Purchased Shares may not
be sold except as provided in paragraph 2 below.
2. The undersigned agrees that, if in the future the undersigned
should decide to dispose of such Purchased Shares (such disposition not being
presently foreseen or contemplated), the undersigned will not offer, sell,
transfer or exchange such Purchased Shares, except (a) pursuant to Section 15 of
the Warrant and (b) under the conditions that would not violate the Act.
3. The undersigned is purchasing such Purchased Shares
pursuant to an exemption from the registration requirements of the Act.
------------------------------------------
DATE:____________________________________
EXHIBIT C
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
EXHIBIT D
LIST OF OPTIONS AND RIGHTS TO ACQUIRE COMMON STOCK
TFC ENTERPRISES, INC.
OPTION HOLDER NUMBER PRICE TERM
SHARES
------------------------------------------ ----------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 17,390 $11.50 5/9/95-12/31/99
14,632 $11.50 5/9/95-12/31/99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 17,390 $11.50 5/9/95-12/31/99
153,590 $11.50 5/9/95-12/31/99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 17,390 $11.50 5/9/95-12/31/99
193,986 $11.50 5/9/95-12/31/99
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7,436 $11.50 5/9/95-12/31/99
14,632 $11.50 5/9/95-12/31/99
▇▇▇▇▇▇ ▇. Tray 39,679 $11.50 5/9/95-12/31/99
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 100,000 $1.125 1/1/97-12/31/2006
▇▇▇▇▇▇ ▇. Tray 50,000 $1.25 1/1/97-12/31/2006
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 200,000 $1.44 1/1/97 - 12/31/2006
*General Electric Capital
Corporation 567,640 $1.00 12/20/96-3/31/2002
* The Warrant granted to General Electric Capital Corporation on December 20,
1996, for 567,640 Warrant Shares was amended by that certain Allonge, dated as
of the date of this Agreement, to reduce the Exercise Price from $2.00 to $1.00
per share and to change the Expiration Date of the Warrant from 12/31/2000 to
3/31/2002.
