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"), Eighteen Thousand Seven
Hundred Fifty (18,750) 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
Nine and 8/32nds dollars ($9.2188) per share, subject to adjustments as noted
below (the "Warrant Exercise Price"). This Warrant, dated July 18, 2000, is
issued pursuant to Section 2.1(c) 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 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.
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(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.
(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.
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(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 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: July 18, 2000
NEW CENTURY FINANCIAL
CORPORATION
By /s/ Xxxxxx X. Xxxx
---------------------------------------
Chief Executive Officer
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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
----------------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued other than to Social Security or other Tax
Holder: Identification No.
--------------------------------------- ----------------------------------
---------------------------------------
---------------------------------------
[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
---------------------------------------
--------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued other than to Social Security or other Tax
Holder: Identification No.
---------------------------------------- -----------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
-8-
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
---------------------------------------
---------------------------------------
---------------------------------------
[Print Name and Address of Holder above]
If shares are to be issued other than to Social Security or other Tax
Holder: Identification No.
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----------------------------------------
-----------------------------------------
[Print Name and Address of Holder above]
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