THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
ACCORDINGLY, THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF WITHOUT (i) AN OPINION OF COUNSEL SATISFACTORY TO NEW CENTURY FINANCIAL
CORPORATION THAT SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES LAWS OR (ii) SUCH REGISTRATION.
NEW CENTURY FINANCIAL CORPORATION
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
For value received, U.S. Bank National Association, its successors or
assigns ("Holder"), is entitled to purchase from New Century Financial
Corporation, a Delaware corporation (the "Company"), Thirty-Seven Thousand
Five Hundred (37,500) fully paid and nonassessable shares (the "Warrant
Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock"), or such greater or lesser number of such shares as may be determined
by application of the anti-dilution provisions of this Warrant, at the price
of Six and 7/8ths dollars ($6.875) per share, subject to adjustments as noted
below (the "Warrant Exercise Price"). This Warrant, dated April 28, 2000, is
issued pursuant to Section 2.1(b) of the Warrant Issuance Agreement dated as
of April 28, 2000 by and between the Company and the initial Holder.
This Warrant may be exercised in full or in part at any time or from time
to time after the date hereof and prior to the close of business on April 28,
2005.
This Warrant is subject to the following terms and conditions:
1. EXERCISE.
The rights represented by this Warrant may be exercised by the Holder, in
whole or in part, by written election in the form set forth below, by the
surrender of this Warrant (properly endorsed if required) at the principal
office of the Company and by payment to the Company by cash, certified check
or bank draft of the Warrant Exercise Price. The shares so purchased shall
be deemed to be issued as of the close of business on the date on which this
Warrant has been exercised by payment to the Company of the Warrant Exercise
Price. Certificates for the Warrant Shares so purchased, bearing an
appropriate restrictive legend, shall be delivered to the Holder within
fifteen (15) days after the rights represented by this Warrant shall have
been so exercised, and, unless this Warrant has expired, a new warrant
representing the number of Warrant Shares, if any, with respect to which this
Warrant has not been exercised shall also be delivered to the Holder hereof
within such time. No fractional shares shall be issued upon the exercise of
this Warrant.
2. WARRANT SHARES. All Warrant Shares that may be issued upon the
exercise of the rights represented by this Warrant shall, upon issuance, be
duly authorized and issued, fully paid and nonassessable shares. During the
period within which the rights represented by this Warrant may be exercised,
the Company shall at all times have authorized and reserved for the purpose
of issue or transfer upon exercise of the subscription rights evidenced by
this Warrant a sufficient number of shares of its Common Stock to provide for
the exercise of the rights represented by this Warrant.
3. ADJUSTMENT. The Warrant shall be subject to adjustment from time to
time as hereinafter provided in this Section 3:
(a) If the Company at any time divides the outstanding shares of its
Common Stock into a greater number of shares (whether pursuant to a stock
split, stock dividend or otherwise), and conversely, if the outstanding
shares of its Common Stock are combined into a smaller number of shares,
or if the Company effects a transaction that has a similar effect, the
Warrant Exercise Price in effect immediately prior to such division or
combination shall be proportionately adjusted to reflect the reduction or
increase in the value of each such common share.
(b) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its
assets to another corporation, or any other similar transaction shall be
effected in such a way that holders of the Company's Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for such Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the
holder of this Warrant shall have the right to purchase and receive upon
the basis and upon the terms and conditions specified in this Warrant and
in lieu of the shares of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such stock, securities or assets as would have been
issued or delivered to the holder of this Warrant if it had exercised
this Warrant and had received such shares of Common Stock prior to such
reorganization, reclassification, consolidation, merger or sale. The
Company shall not effect any such consolidation, merger or sale, unless
prior to the consummation thereof the successor corporation (if other
than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument
executed and mailed to the Holder
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at the last address of the Holder appearing on the books of the Company,
the obligation to deliver to the Holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, the Holder may
be entitled to purchase.
(c) Upon each adjustment of the Warrant Exercise Price, the Holder
shall thereafter be entitled to purchase, at the Warrant Exercise Price
resulting from such adjustment, the number of shares obtained by
multiplying the Warrant Exercise Price in effect immediately prior to
such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by
the Warrant Exercise Price resulting from such adjustment.
(d) Upon any adjustment of the Warrant Exercise Price, the Company
shall give written notice thereof, by first class mail, postage prepaid,
addressed to the Holder at the address of the Holder as shown on the
books of the Company, which notice shall state the Warrant Exercise Price
resulting from such adjustment and the increase or decrease, if any, in
the number of shares purchasable at such price upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
4. NO RIGHTS AS SHAREHOLDER. This Warrant shall not entitle the Holder
to any voting rights or other rights as a shareholder of the Company.
5. ADDITIONAL RIGHT TO CONVERT WARRANT.
(a) The Holder of this Warrant shall have the right to require the
Company to convert this Warrant (the "Conversion Right") at any time after it
is exercisable, but prior to its expiration, into shares of the Company's
Common Stock as provided for in this Section 5. Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment to
the Company of the Warrant Exercise Price) that number of shares of the
Company's Common Stock equal to the quotient obtained by dividing (x) the
value of the Warrant at the time the Conversion Right is exercised
(determined by subtracting the Warrant Exercise Price for a Warrant Share in
effect immediately prior to the exercise of the Conversion Right from the
Fair Market Value of a Warrant Share immediately prior to the date of the
exercise of the Conversion Right and multiplying that number by the number of
Warrant Shares for which the Conversion Right is being exercised) by (y) the
Fair Market Value of a Warrant Share immediately prior to the date of
exercise of the Conversion Right.
(b) The Conversion Right may be exercised by the Holder, at any time or
from time to time, prior to the expiration of the Warrant, on any business
day by delivering a written notice in the form attached hereto (the
"Conversion Notice") to the Company at the offices of the Company stating
that the Holder desires to exercise the Conversion Right and specifying (i)
the total number of shares with respect to which the Conversion Right is
being exercised and (ii) a place and date not less than five or more than 20
business days from the date of the Conversion Notice for the closing of such
purchase.
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(c) At any closing under Section 5(b) hereof, (i) the Holder will
surrender the Warrant and (ii) the Company will deliver to the Holder (A) a
certificate or certificates for the number of shares of the Company's Common
Stock issuable upon such conversion, together with cash, in lieu of any
fraction of a share and (B) a new warrant representing the number of shares,
if any, with respect to which the Warrant shall not have been exercised.
(d) For purposes of this Section 5, Fair Market Value of a Warrant Share
as of a particular date (the "Determination Date") shall mean:
(i) If the Company's Common Stock is traded on an exchange or is
quoted on Nasdaq, then the average closing or last sale prices,
respectively, reported for the ten (10) business days immediately
preceding the Determination Date, and
(ii) If the Company's Common Stock is not traded on an exchange or
on Nasdaq but is traded on the over-the-counter market, then the average
closing bid and asked prices reported for the ten (10) business days
immediately preceding the Determination Date.
6. TRANSFER. Subject to the requirements of federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, at the principal office of the Company by the holder hereof
in person or by duly authorized attorney, upon surrender of this Warrant
properly endorsed. The bearer of this Warrant, when endorsed, may be treated
by the Company and all other persons dealing with this Warrant as the
absolute owner hereof for any purpose and as the person entitled to exercise
the rights represented by this Warrant, or to the transfer hereof on the
books of the Company, any notice to the contrary notwithstanding; but until
such transfer on such books, the Company may treat the registered owner
hereof as the owner for all purposes. The Company shall not be required to
pay any tax or other charge imposed in connection with the transfer of this
Warrant, and the Company shall not be required to issue or deliver any stock
certificate hereunder, until such tax or other charge has been paid or it has
been established to the Company's satisfaction that no tax or other charge is
due.
7. REGISTRATION RIGHTS. Holder shall be entitled to the registration
rights as set forth in the Amended and Restated Registration Rights Agreement
dated as of April 28, 2000, subject to the limitations and restrictions set
forth in Section 9 thereof.
8. WRITING. This Warrant may not be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
The Holder, by its acceptance hereof, represents, warrants, covenants and
agrees that the Warrant and Warrant Shares are being acquired for investment
for the Holder's own account and not with a view to the distribution thereof,
and that absent an effective registration statement under the Securities Act
of 1933, as amended, covering the disposition of this Warrant or the Warrant
Shares, they will not be sold, transferred, assigned, hypothecated or
otherwise disposed of without first providing the Company with evidence
satisfactory to the Company, including, at
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the Company's discretion, an opinion of counsel, satisfactory to the Company,
to the effect that such sale, transfer, assignment, hypothecation or other
disposal will be exempt from the registration and prospectus delivery
requirements of applicable federal and state securities laws and regulations;
and the Holder consents to the Company making a notation in its records or
giving to any transfer agent of this Warrant or the Warrant Shares an order
to implement such restriction on transferability.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and delivered by a duly authorized officer.
Dated: April 28, 2000
NEW CENTURY FINANCIAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: EVP
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WARRANT EXERCISE
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, ________________ of the shares of Common
Stock of New Century Financial Corporation, to which such Warrant relates and
herewith makes payment of $_____________ therefor in cash, certified check or
bank draft and requests that the certificates for such shares be issued in
the name of, and be delivered to ________________, whose address is set forth
below the signature of the undersigned.
Dated:
-------------------------
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Signature
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--------------------------------------------
--------------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued Social Security or other Tax Identification No.
other than to Holder:
--------------------------------------- ----------------------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
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WARRANT ASSIGNMENT
(To be signed only upon exercise of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________ the right represented by the foregoing Warrant
to purchase the shares of Common Stock of New Century Financial Corporation,
to which such Warrant relates and appoints ____________________ attorney to
transfer such right on the books of New Century Financial Corporation, with
full power of substitution in the premises.
Dated:
-------------------------------
--------------------------------------------
Signature
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--------------------------------------------
--------------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued Social Security or other Tax Identification No.
other than to Holder:
--------------------------------------- ----------------------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
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WARRANT CONVERSION NOTICE
(To be signed only upon conversion of Warrant pursuant to Section 5)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the Conversion Right as provided for in
Section 5 of the foregoing Warrant, with respect to __________ of the
previously unexercised shares, which shall result pursuant to the conversion
provisions of Section 5 in the purchase thereunder of _________ shares of
Common Stock of New Century Financial Corporation, and herewith tenders the
Warrant in full payment for the purchased shares, as provided for in Section 5
of the foregoing Warrant. If said number of shares shall not be all the
shares purchasable under the Warrant, a new warrant is to be issued in the
name of the undersigned for the remaining balance of the unexercised shares.
The undersigned hereby requests that the certificates for such shares be
issued in the name of, and be delivered to __________________ whose address
is set forth below the signature of the undersigned.
Dated:
-------------------------------
--------------------------------------------
Signature
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--------------------------------------------
--------------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued Social Security or other Tax Identification No.
other than to Holder:
--------------------------------------- ----------------------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
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