EXHIBIT 10.1
EXECUTION COPY
COMMON STOCK WARRANT AGREEMENT
by and between
GREEN TREE FINANCIAL CORPORATION
and
XXXXXX COMMERCIAL PAPER INC.
Dated as of February 13, 1998
COMMON STOCK WARRANT AGREEMENT
THIS COMMON STOCK WARRANT AGREEMENT (the "AGREEMENT") is dated as of
February 13, 1998 and is by and between GREEN TREE FINANCIAL CORPORATION, a
Delaware corporation (the "COMPANY"), and XXXXXX COMMERCIAL PAPER INC., a New
York corporation ("XXXXXX"). Capitalized terms used herein and not defined
herein shall have the meanings given thereto in the Credit Agreement (as
hereinafter defined).
RECITALS
WHEREAS, concurrently herewith, Green Tree Financial Corp. I, an
affiliate of the Company, and Xxxxxx are entering into that certain Asset
Assignment Agreement, dated as of February 13, 1998 (the "CREDIT AGREEMENT"),
pursuant to which Xxxxxx is lending funds to the Company (the "LOAN"), all as
more fully set forth in the Credit Agreement;
WHEREAS, as partial consideration for Xxxxxx providing the Loan, the
Company has agreed to issue and sell warrants (the "WARRANTS") to Xxxxxx
entitling Xxxxxx to acquire up to an aggregate of 2,735,688 shares of common
stock, par value $0.01 per share, of the Company (the "COMMON STOCK"), which
amount constitutes 2% of the outstanding fully diluted Common Stock of the
Company as of the date hereof (and as such aggregate number of shares may after
the date hereof be adjusted from time to time in any manner pursuant to this
Agreement, and the Common Stock or any security substituted for the Common Stock
issuable on exercise of the Warrants being referred to herein as the "WARRANT
SHARES"), at an exercise price as specified herein; and
WHEREAS, the Company has agreed to register the Warrant Shares for
public sale under the Securities Act of 1933, as amended (the "ACT"), under
certain circumstances, pursuant to a Registration Rights Agreement, dated as of
February 13, 1998, by and between the Company and Xxxxxx (the "REGISTRATION
RIGHTS AGREEMENT").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
SECTION 1. WARRANT CERTIFICATE. The certificate evidencing the Warrants
(the "WARRANT CERTIFICATE") to be delivered pursuant to this Agreement shall be
in registered form only and shall be substantially in the form set forth in
Exhibit A attached hereto. The
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purchase price per Warrant Share and the number of Warrant Shares issuable upon
exercise of each Warrant are subject to adjustment upon the occurrence of
certain events, all as hereinafter provided.
SECTION 2. EXECUTION OF WARRANT CERTIFICATE. The Warrant Certificate
shall be signed on behalf of the Company by its Chairman of the Board,
Vice-Chairman of the Board, President, any Vice-President or its Chief Financial
Officer (each an "OFFICER") under its corporate seal. Each such signature upon
the Warrant Certificate may be in manual form or in the form of a facsimile
signature of the present or any future Officer and may be imprinted or otherwise
reproduced on the Warrant Certificate and for that purpose the Company may adopt
and use the facsimile signature of any person who shall have been an officer,
notwithstanding the fact that at the time the Warrant Certificate shall be
delivered or disposed of he or she shall have ceased to hold such office. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificate. In case any officer of the Company who shall have signed the
Warrant Certificate shall cease to be such officer before the Warrant
Certificate so signed shall have been delivered or disposed of by the Company,
such Warrant Certificate nevertheless may be delivered or disposed of as though
such person had not ceased to be such officer of the Company. Warrants shall be
dated as of the date of counter-signature thereof by the Company either upon
initial issuance or upon division, exchange, substitution or transfer.
SECTION 3. WARRANT PRICE. Subject to Section 12, the price at which
Warrant Shares shall be purchasable upon exercise of the Warrants (the "EXERCISE
PRICE") shall be $22.75 per Warrant Share.
SECTION 4. REGISTRATION. The Warrants shall be numbered and the Company
shall register the Warrant Certificates in a register as each such Warrant
Certificate is issued. The Company may deem and treat the registered holder of a
Warrant Certificate as the absolute owner thereof for all purposes
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for all purposes, and shall not be affected by any notice to the
contrary. The Warrants shall be registered initially in the name of "Xxxxxx
Commercial Paper Inc." in such denominations as Xxxxxx may request in writing to
the Company. Upon delivery of the initial Warrant concurrently herewith, the
Company shall cause to be delivered to Xxxxxx an opinion of counsel to the
Company substantially in the form annexed hereto as Exhibit 1.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Company shall
from time to time register the transfer of Warrant Certificates in a Warrant
register to be maintained by the Company upon surrender thereof accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company, duly executed by the registered holder thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be canceled and
disposed of by the Company. A
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Warrant holder agrees that prior to any proposed transfer of the
Warrant or of the Warrant Shares, if such transfer is not made pursuant to an
effective Registration Statement under the Act and any applicable state
securities laws, the Warrant holder will deliver to the Company (a) an
investment covenant reasonably satisfactory to the Company signed by the
proposed transferee, (b) an agreement by such transferee to the impression of
the restrictive investment legend set forth in Section 6 on the Warrant or the
Warrant Shares, (c) an agreement by such transferee that the Company may place a
notation in the stock books of the Company or a "stop transfer order" with any
transfer agent or registrar with respect to the Warrant Shares, and (d) an
agreement by such transferee to be bound by the provisions of this Section 5
relating to the transfer of such Warrant or Warrant Shares. The Warrant
Certificate may be exchanged at the option of the holder thereof, when
surrendered to the Company at its office for another Warrant Certificate of like
tenor. The Warrant Certificate surrendered for exchange shall be canceled and
disposed of by the Company.
SECTION 6. CERTIFICATES TO BEAR LEGENDS. The Warrant holder agrees that
each certificate representing Warrant Shares will bear the following legend:
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS
OF SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS HAVE BEEN COMPLIED
WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
SECTION 7. EXERCISE OF THE WARRANT; TERM. Subject to the terms of this
Agreement, the Warrant holder shall have the right from the date of issuance
hereof until the later of (i) 5:00 p.m., New York City time, on February 13,
2000, or (ii) 5:00 p.m., New York City time, on the date that is 90 days after
the date all amounts due and owing under the Loan have been paid to Xxxxxx and
the Loan has been terminated (in either event, the "EXPIRATION DATE") to
exercise the Warrants and to receive from the Company the number of fully paid
and nonassessable Warrant Shares that the holder may at the time be entitled to
receive on exercise of such Warrant and payment of the Exercise Price for such
Warrant Shares in accordance herewith. A holder of Warrants wishing to exercise
such Warrants shall give written notice (the "EXERCISE NOTICE") to the Company
by 10:00 a.m. on any business day by facsimile transmission to the CFO or
Treasurer of the Company and make subsequent verbal confirmation of the receipt
thereof; PROVIDED, HOWEVER, that the Company shall not be obligated to deliver
the Warrant Shares to which the Exercise Notice relates until 72 hours after
receipt of the Exercise Notice. If the Warrant is not exercised prior to the
Expiration Date it shall become void and all rights thereunder and all rights in
respect thereof under this Agreement shall cease as of such time. The Warrant
may be exercised upon surrender to the Company at its office (the address of
which is set forth in Section 17 hereof) of the certificate
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or certificates evidencing the Warrants to be exercised 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 upon payment to the Company of the Exercise
Price for the number of Warrant Shares in respect of which Warrants are then
exercised. Payment of the aggregate Exercise Price shall be made (i) in cash or
by certified or official bank check payable to the order of the Company, (ii)
through the surrender of debt of the Company having a principal amount equal to
the aggregate Exercise Price to be paid (the Company shall pay the accrued
interest or dividends on such surrendered debt securities in cash at the time of
surrender notwithstanding the stated terms thereof), (iii) by tendering that
portion of the Warrants having a fair market value equal to the Exercise Price,
or (iv) by any combination of (i), (ii) or (iii). For purpose of clause (iii)
above, the fair market value of the Warrant shall be determined as follows: (A)
to the extent the Common Stock is publicly traded and listed on the NASDAQ
National Market System or a national securities exchange, the fair market value
shall be equal to the difference between (1) the Closing Price (as hereafter
defined) of the Common Stock on the date of exercise, and (2) the Exercise
Price; or (B) to the extent the Common Stock is not publicly traded, or
otherwise is not listed on a national securities exchange, the fair market value
shall be equal to the value per share as determined in good faith by the Board
of Directors of the Company.
Subject to the provisions of Section 8 hereof, upon such surrender of
the Warrant and payment of the Exercise Price, the Company shall issue and cause
to be delivered with all reasonable dispatch but in no event later than three
business days or upon the written order of the holder and in such name or names
as the Warrant holder may designate, a certificate for the number of full
Warrant Shares issuable upon the exercise of the Warrant together with cash as
provided in Section 14; PROVIDED, HOWEVER, that if any consolidation, merger or
lease or sale of assets is proposed to be effected by the Company as described
in subsection (l) of Section 12 hereof, or a tender offer or an exchange offer
for shares of Common Stock of the Company shall be made, upon such surrender of
the Warrant and payment of the Exercise Price as aforesaid, the Company shall,
as soon as possible, but in any event not later than two business days
thereafter, issue and cause to be delivered the full number of Warrant Shares
issuable upon the exercise of the Warrant in the manner described in this
sentence together with cash as provided in Section 14. Such certificate shall be
deemed to 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 of the surrender of the Warrant and payment of the Exercise Price.
The Warrants shall be exercisable, at the election of the holder(s)
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
Shares will be issued and delivered pursuant to the provisions of this
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Section and of Section 2 hereof. The Warrant Certificate surrendered upon
exercise of Warrants shall be canceled and disposed of by the Company.
SECTION 8. PAYMENT OF TAXES. The Company shall pay all documentary
stamp and other taxes, if any, attributable to the initial issuance of Warrant
Shares upon the exercise of the Warrants; PROVIDED, HOWEVER, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue of the Warrant Certificate or any certificate
for Warrant Shares in a name other than that of the registered holder of the
Warrant Certificate surrendered upon the exercise of a Warrant, and the Company
shall not be required to issue or deliver the Warrant Certificate unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
SECTION 9. MUTILATED OR MISSING WARRANT CERTIFICATE. In case the
Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company
shall issue, 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 of such loss, theft or destruction of such Warrant Certificate and a
reasonable indemnity, if requested. Applicants for such substitute Warrant
Certificate shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may reasonably prescribe.
SECTION 10. RESERVATION OF WARRANT SHARES. The Company shall at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of any Warrants,
the maximum number of shares of Common Stock which may then be deliverable upon
the exercise of the Warrants. The Company or, if appointed, the transfer agent
for the Common Stock and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid (each, a "TRANSFER AGENT") will be 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 the Transfer Agent and with every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of the rights
of purchase represented by the Warrants. The Company will furnish such Transfer
Agent a copy of all notices of adjustments and certificates related thereto,
transmitted to each holder pursuant to Section 15 hereof. The Company will
supply such Transfer Agent with duly executed certificates for such purposes and
will provide or otherwise make available any cash which may be payable as
provided in Section 14. Before taking any action which would cause an adjustment
pursuant to Section 12 or 13 hereof in the Exercise Rate, the Company will take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares
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at the Exercise Rate as so adjusted. The Company covenants that all Warrant
Shares that may be issued upon exercise of any Warrants will, upon issue, be
fully paid, nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issue thereof. The
Company shall have the right to purchase or otherwise acquire Warrants at such
times, in such manner and for such consideration as it may deem appropriate and
as the holder thereof may agree.
SECTION 11. OBTAINING STOCK EXCHANGE LISTINGS. Subject to the terms and
conditions of the Registration Rights Agreement, the Company will from time to
time take all action which may be necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges and markets within the United States of
America, if any, on which other shares of Common Stock are then listed.
SECTION 12. ADJUSTMENT OF NUMBER OF WARRANT SHARES ISSUABLE. The number
of Warrant Shares issuable upon the exercise of the Warrants (the "EXERCISE
RATE") is subject to adjustment from time to time upon the occurrence of the
events enumerated in this Section 12 and under the circumstances described in
Section 13. For purposes of this Section 12, "COMMON STOCK" means shares now or
hereafter authorized of any class of common stock of the Company and any other
stock of the Company, however designated, that has the right (subject to any
prior rights of any class or series of preferred stock) to participate in any
distribution of the assets or earnings of the Company without limit as to per
share amount.
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the Company shall (i)
pay a dividend on its outstanding Common Stock in shares of Common Stock or make
a distribution to all holders of its outstanding Common Stock in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock, (iv) make a
distribution on its Common Stock in shares of its capital stock other than
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
corporation), then the Exercise Rate in effect immediately prior thereto shall
be adjusted so that the holder of each Warrant upon exercise thereof shall be
entitled to receive the kind and aggregate number of Warrant Shares or other
securities of the Company that it would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification. If after an
adjustment a holder of a Warrant upon exercise of it may receive shares of two
or more classes of capital stock of the Company, the Company shall determine the
allocation of the adjusted Exercise Rate between the classes of capital stock.
After such allocation, the exercise privilege and the Exercise Rate of each
class of
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capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) ADJUSTMENT FOR RIGHTS ISSUE. If the Company issues any rights,
options (other than options granted pursuant to a stock option plan for
officers, directors and/or employees of the Company) or warrants entitling any
person to subscribe for or purchase Common Stock or securities convertible into,
or exchangeable or exercisable for, Common Stock at an offering price (or with
an initial conversion, exchange or exercise price plus such offering price) per
share which is less than the Current Market Price per share of Common Stock on
the record date for such issuance (all of the foregoing, "RIGHTS"), the Exercise
Rate shall be adjusted so that the Exercise Rate shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon exercise
of each Warrant by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common Stock offered
for subscription or purchase in connection with such rights, options or
warrants, and of which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or warrants
plus the number of shares which the aggregate offering price of the total number
of shares so offered would purchase at the Current Market Price per current
share of Common Stock at such record date.
The adjustment shall be made successively whenever any such Rights are
issued and shall become effective immediately after the record date for the
determination of shareholders entitled to receive the Rights in the case of
Rights to be issued to the holders of Common Stock. To the extent that shares of
Common Stock are not delivered after the expiration of such rights or warrants,
the Exercise Rate shall be readjusted to the Exercise Rate which would otherwise
be in effect had the adjustment made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered. In the event that such rights or warrants are
not so issued, the Exercise Rate shall again be adjusted to be the Exercise Rate
which would then be in effect if such date fixed for determination of
shareholders entitled to receive such rights or warrants had not been so fixed.
(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS. If the Company distributes to
all holders of its Common Stock any of its assets (including but not limited to
cash), debt securities, preferred stock or any rights, options or warrants to
purchase any such securities (other than as contemplated by such section (b)
above), the Exercise Rate shall be adjusted so that the Exercise Rate shall be
determined by multiplying the number of Warrant Shares theretofore purchasable
upon the exercise of each Warrant by a fraction, of which the numerator shall be
the then Current Market Price per share of Common Stock on the record date of
such distribution, and of which the denominator shall be the then Current Market
Price per share of Common Stock on the record date, less the then fair market
value on the record date of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights,
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options or warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive the distribution.
(d) ADJUSTMENT FOR COMMON STOCK ISSUE. If the Company issues shares of
Common Stock (other than shares issued pursuant to a stock option plan for
officers, directors and/or employees of the Company) for a consideration per
share less than the Current Market Price per share on the date the Company fixes
the offering price of such additional shares, the Exercise Rate shall be
adjusted so that the Exercise Rate shall be determined by multiplying the number
of Warrant Shares therefore purchasable upon the 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 such issuance (including the additional shares of
Common Stock being issued) and the denominator of which shall be an amount equal
to the sum of (i) the total number of shares of Common Stock outstanding
immediately prior to such issuance plus (ii) the number of shares which the
aggregate purchase price paid for the issuance would purchase at the Current
Market Price per share of Common Stock on the date of issuance.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to (w) any of the transactions
described in subsections (a), (b) and (c) of this Section 12, (x) the exercise
of the Warrants, or the conversion or exchange of other securities convertible
or exchangeable for Common Stock, (y) Common Stock upon the exercise of rights
or warrants issued to the holders of Common Stock, (z) Common Stock issued to
shareholders of any person that is not affiliated with the Company and that
merges into the Company in proportion to their stock holdings of such person
immediately prior to such merger, upon such merger.
(e) ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE. If the Company issues
any securities convertible into or exchangeable for Common Stock (other than
securities issued in transactions described in subsections (b) and (c) of this
Section 12) for a consideration per share of Common Stock initially deliverable
upon conversion or exchange of such securities less than the Current Market
Price per share on the date of issuance of such securities, the Exercise Rate
shall be adjusted so that the Exercise Rate 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 number of shares of
Common Stock outstanding on the date of each issuance (including the additional
maximum number of shares deliverable upon conversion of or in exchange for each
security at the initial conversion in exchange rate), and the denominator of
which shall be an amount equal to the sum of (i) the total number of shares of
Common Stock outstanding immediately prior to such issuance, plus (ii)
the number of shares which the aggregate purchase price paid for the issuance
could purchase
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at the Current Market Price per share of Common Stock on the date of issuance of
such securities.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange of
such securities has not been issued when such securities are no longer
outstanding, then the Exercise Rate shall promptly be readjusted to the Exercise
Rate which would then be in effect had the adjustment upon the issuance of such
securities been made on the basis of the actual number of shares of Common Stock
issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities issued to
shareholders of any person that is not affiliated with the Company and that
merges into the Company, or with a subsidiary of the Company, in proportion to
their stock holdings of such person immediately prior to such merger, upon such
merger.
(f) CURRENT MARKET PRICE. The current market price per share of Common
Stock (the "CURRENT MARKET PRICE") on any date is: (i) if the Common Stock is
not registered under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), the value of the Common Stock as determined by an independent,
nationally recognized investment banking firm experienced in valuation matters
chosen by the Company and reasonably satisfactory to the Warrant holder, or (ii)
if the Common Stock is registered under the Exchange Act, the average of the
daily Closing Prices of the Common Stock for 30 consecutive trading days
commencing 45 trading days before the date in question or, if the Common Stock
has been registered for less than 30 consecutive trading days, the average of
the daily Closing Prices for all the trading days of the Common Stock. The
Closing Price for each day shall be (a) if the Common Stock shall be 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, 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 on the principal national securities
exchange on which the Common Stock shall be listed or admitted to trading (which
shall be the national securities exchange on which the greatest number of shares
of the Common Stock has been traded during such thirty consecutive business
days), or, in either case, if there is no transaction on any such day, the
average of the bid and asked prices regular way on such day, or (b) if the
Common Stock shall not be listed or admitted to trading on any national
securities exchange, the closing price, if reported, or, if the closing price is
not reported, the average of the last reported bid price, as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ)
or a similar source selected from time to time by the Company for the purpose.
In the absence of one or more such quotations, the Board of Directors of the
Company shall determine the Current Market Price in good faith on the basis of
such quotations.
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(g) CONSIDERATION RECEIVED. For purposes of any computation respecting
consideration received pursuant to subsections (d) and (e) of this Section 12,
the following shall apply: (i) in the case of the issuance of shares of Common
Stock for cash, the consideration shall be the amount of such cash, provided
that in no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith, (ii) in the case of the issuance of shares of
Common Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair market value
thereof as determined in good faith by the Board of Directors, based upon the
trading prices of publicly traded securities where appropriate (irrespective of
the accounting treatment thereof), and described in a resolution of the Board of
Directors of the Company, and (iii) in the case of the issuance of securities
convertible into or exchangeable for shares, the aggregate consideration
received therefor shall be deemed to be the consideration received by the
Company for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion or
exchange thereof (the consideration in each case to be determined in the same
manner as provided in clauses (i) and (ii) of this subsection).
(h) WHEN DE MINIMIS ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Exercise Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Exercise Rate. Any adjustments that are not made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest 1/100th of a
share.
(i) WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made for rights
to purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest. No adjustment need be made for a change in the par value
or no par value of the Common Stock. To the extent the Warrant becomes
convertible into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
(j) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted, the
Company shall provide the notices required by Sections 15 and 17 hereof.
(k) NOTICE OF CERTAIN TRANSACTIONS. If (i) the Company takes any action
that would require an adjustment in the Exercise Rate pursuant to subsections
(a), (b), (c), (d) or (e) of this Section 12; (ii) the Company takes any action
that would require a supplemental Warrant Agreement pursuant to subsection (l)
of this Section 12; or (iii) there is a liquidation or dissolution of the
Company, then the Company shall mail to Warrant holders a notice stating the
proposed record date for a dividend or distribution or the proposed effective
date of a subdivision, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall mail the notice
at least 15 days before such date. Failure to mail the notice or any defect in
it shall not affect the validity of the transaction.
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(l) REORGANIZATION OF COMPANY. If the Company consolidates or merges
with or into, or transfers or leases all or substantially all its assets to, any
person, upon consummation of such transaction the Warrants shall automatically
become exercisable for the kind and amount of securities, cash or other assets
which the holder of a Warrant would have owned immediately after the
consolidation, merger, transfer or lease if the holder had exercised the Warrant
immediately before the effective date of the transaction. Concurrently with the
consummation of such transaction, the corporation formed by or surviving any
such consolidation or merger if other than the Company, or the person to which
such sale or conveyance shall have been made, shall enter into a supplemental
Warrant Agreement so providing and further providing for adjustments which shall
be as nearly equivalent as may be practical to the adjustments provided for in
this Section. The successor company shall mail to Warrant holders a notice
describing the supplemental Warrant Agreement. If the issuer of securities
deliverable upon exercise of the Warrant under the supplemental Warrant
Agreement is an affiliate of the formed, surviving, transferee or lessee
corporation, that issuer shall join in the supplemental Warrant Agreement. If
this subsection (l) applies, subsections (a), (b), (c), (d) and (e) of this
Section 12 do not apply.
(m) WHEN ISSUANCE OR PAYMENT MAY BE DEFERRED. In any case in which this
Section 12 shall require that an adjustment in the Exercise Rate be made
effective as of a record date for a specified event, the Company may elect to
defer until the occurrence of such event (i) issuing to the holder of any
Warrant exercised after such record date the Warrant Shares and other capital
stock of the Company, if any, issuable upon such exercise over and above the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise on the basis of the Exercise Rate, and (ii) paying to such holder
any amount in cash in lieu of a fractional share pursuant to Section 14;
PROVIDED, HOWEVER, that the Company shall deliver to such holder a due xxxx or
other appropriate instrument evidencing such holder's right to receive such
additional Warrant Shares, other capital stock and cash upon the occurrence of
the event requiring such adjustment.
(n) FORM OF WARRANT. Irrespective of any adjustments in the Exercise
Rate or in the kind of shares purchasable upon the exercise of Warrants, any
Warrant theretofore or thereafter issued may continue to express the same price
and kind of shares as are stated in the Warrant initially issuable pursuant to
this Agreement.
(o) NO ADJUSTMENT FOR DIVIDENDS. Except as provided in this Section 12,
no adjustment in respect of any dividends or other payments or distributions
made to holders of Securities shall be made during the term of a Warrant or upon
exercise of a Warrant.
(p) RIGHT TO DELIVER CASH IN LIEU OF WARRANT SHARES ON EXERCISE OF
WARRANTS. Notwithstanding any other provision in this Agreement, the Company
shall have the right, in lieu of delivering the number of Warrant Shares
otherwise required to be delivered by Section 7 hereof, to elect to deliver to a
holder exercising a Warrant cash in the amount equal to the number of shares
otherwise deliverable multiplied by the sum of (i) the amount equal to the
difference between the Closing Price of the Common Stock (as defined in
Paragraph (f) of Section 12) on the last trading day immediately preceding the
day of surrender of the Warrant and the Exercise Price, and (ii) the amount
equal to the increase, if any, in the Closing Price of the Common Stock (as
defined in Paragraph (f) of
12
Section 12) on the last trading day immediately preceding the day the Company
exercises its rights under this Section 12(p) and the Closing Price of the
Common Stock (as defined in Paragraph (f) of Section 12) on the last trading day
immediately preceding the day of surrender of the Warrant. The Company shall
also refund any cash or checks that were tendered in payment of the Exercise
Price. The Company shall not have the right to elect to deliver cash in lieu of
less than all of the Warrant Shares otherwise deliverable. If the Company elects
to exercise its rights hereunder, it shall so notify the holders of tendered
Warrants by the close by business of the next business day following receipt of
the Exercise Notice referred to in Section 7. Two business days thereafter the
Company will settle on the tender of the Warrants by delivery of cash by wire
transfer in immediately available funds. The failure of the Company to so notify
such holders shall result in the Company's forfeiture of its rights under this
Section 12(p).
(q) CALL OF WARRANTS BY THE COMPANY. (i) At any time after the date
hereof (including upon delivery of an Exercise Notice under Section 7), the
Company shall have the right (the "CALL RIGHT") to call and repurchase from the
registered Warrant holders all (but not less than all) Warrants representing
Warrant Shares at the price to such holders of $15.00 per underlying Warrant
Share (the "CALL PRICE") regardless of the Closing Price of the Common Stock on
the date of the Call Notice or Call Date (as such terms are hereinafter
defined). If the Company exercises the Call Right pursuant to this Section
12(q), Warrant holders shall not be obligated to pay the Exercise Price in order
to receive the Call Price, and to the extent that Warrant holders have tendered
the Exercise Price to the Company prior to the Company exercising its Call
Right, the Company shall promptly upon the exercise of the Call Right, and in no
event later than the Call Date (as hereinafter defined), remit to such Warrant
holders the Exercise Price so tendered to the Company in addition to paying such
Warrant holders the Call Price. Under no circumstances shall the Company have
any right to exercise the Call Right described in this Section 12(q) for less
than all Warrants representing Warrant Shares. Notice of the exercise of the
Call Right pursuant to this Section 12(q) (a "CALL NOTICE") shall be given in
the manner provided for in Section 15 and Section 17 except as otherwise
modified hereby. Such notice, specifying the date on which registered holders
are to deliver the Warrants in exchange for payment therefor (the "CALL DATE"),
will be delivered to the registered holders of the Warrants to be repurchased
not more than 10 business days nor less than three business days prior to the
Call Date; PROVIDED, HOWEVER, that if the Company determines to exercise its
Call Right upon receipt of notice from Warrant holders of their proposed
exercise of the Warrants pursuant to and as contemplated by Section 7 hereof,
the Company shall deliver the Call Notice by facsimile transmission and make
subsequent verbal confirmation of receipt thereof by the close of business of
the next business day following receipt by the Company of the Warrant holders'
notice to exercise the Warrants, and in such event, the Call Date shall be no
later than two business days after the delivery of the Call Notice. On the Call
Date, the Warrant holders will deliver the Warrants to the Company in exchange
for the delivery by the Company of the payment therefor in cash by wire transfer
of immediately available funds to an account specified by the Warrant holders to
the Company
13
prior to the Call Date. Any Call Notice provided pursuant to the terms of this
Section 12(q) to a Warrant holder shall constitute an irrevocable commitment of
the Company to purchase all the Warrants representing Warrant Shares in
accordance herewith. Upon receipt of the Call Notice by the registered holders
of the Warrants, such holders shall be precluded from exercising the Warrants as
contemplated by this Agreement unless the Company fails to perform its
obligations specified in this Section 12(q). If the Exercise Rate is adjusted in
accordance with Section 12, then the Call Price and number of Warrants subject
to call shall be increased or decreased, as the case may be, in accordance with
the aforesaid adjustment.
(ii) Notwithstanding the first sentence of Section 12(q)(i), in the
event that, during the term of the Loan and prior to the time the Company
exercises any right to call the Warrants as contemplated by Section 12(q)(i),
the Company completes not less than $500 million of securitizations (based on
the face value of offered securities) of Pledged Assets (as such term is defined
in the Credit Agreement), the aggregate purchase price to be paid to Xxxxxx and
the holders of any Warrants upon the exercise of the Company's right to call the
Warrants representing Warrant Shares as contemplated by Section 12(q)(i) shall
be reduced by $5 million.
SECTION 13. NO DILUTION OR IMPAIRMENT; CAPITAL AND OWNERSHIP STRUCTURE.
If any event shall occur as to which the provisions of Section 12 are not
strictly applicable but the failure to make any adjustment would adversely
affect the purchase rights represented by the Warrants in accordance with the
essential intent and principles of such Section, then, in each such case, the
Company shall appoint, at its own expense, an investment banking firm of
recognized national standing that does not have a direct or material indirect
financial interest in the Company or any of its subsidiaries, who has not been,
and, at the time it is called upon to give independent financial advice to the
Company, is not (and none of its directors, officers, employees, affiliates or
shareholders are) a promoter, director or officer of the Company or any of its
subsidiaries, which shall give their opinion upon the adjustment, if any, on a
basis consistent with the essential intent and principles established in Section
12, necessary to preserve, without dilution, the purchase rights, represented by
this Warrant. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the holder of the Warrant and shall make the adjustments
described therein. The Company will not, by amendment of its articles of
incorporation or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of the Warrant against
dilution or other impairment. Without limiting the generality of the foregoing,
the Company (a) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock on the exercise of Warrants from time to
time outstanding, and (b) will not take any action which results in any
adjustment of the Exercise Rate if the total number of Warrant Shares issuable
after the action upon the exercise of the Warrant would exceed the total number
of shares of Common Stock then authorized by the
14
Company's articles of incorporation and available for the purposes of issue upon
such exercise. A consolidation, merger, reorganization or transfer of assets
involving the Company covered by Section 12(l) shall not be prohibited by or
require any adjustment under this Section 13.
SECTION 14. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If any fraction of
a Warrant Share would, except for the provisions of this Section 14, be issuable
on the exercise of any Warrants (or specified portion thereof), the number of
Warrant Shares which shall be so issued shall be rounded (a) to the last
previous whole number if the fraction is less than 0.5 of a Warrant Share, or
(b) to the next higher whole number if the fraction is greater than or equal to
0.5 of a Warrant Share, and if the holder shall have paid the amount due upon
such exercise with respect to such fractional share, then the Company shall
return to such holder the amount so paid with respect to such fractional Warrant
Share.
SECTION 15. NOTICES TO THE WARRANT HOLDER. (a) Upon any adjustment of
the Exercise Rate pursuant to Section 12, the Company shall promptly thereafter
cause to be delivered, by first-class mail, postage prepaid, to the registered
holder of the Warrant Certificate at his address appearing on the Warrant
register a certificate of an Officer of the Company setting forth the Exercise
Rate after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculations are based and setting
forth the number of Warrant Shares (or portion thereof) issuable after such
adjustment in the Exercise Rate, upon exercise of the Warrant and payment of the
Exercise Price. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 15.
(b) In the event: (i) the Company shall declare any dividend payable in
cash or in any securities upon its shares of Common Stock (other than regular
quarterly dividends) or make any distributions to the holders of its shares of
Common Stock, (ii) the Company shall authorize the issuance to all holders of
shares of its Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock, or securities convertible into or exchangeable
for shares of Common Stock, or of any other subscription rights or warrants,
(iii) the Company shall authorize the distribution to all holders of shares of
Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends payable in shares of Common Stock or distributions referred
to in subsection (a) of Section 12 hereof), (iv) of any consolidation or merger
to which the Company is a party and for which approval of any shareholders of
the Company is required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or of any reclassification
or change of Common Stock issuable upon exercise of the Warrant (other than a
change in par value, or from par value to no par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for shares of
Common Stock, (v) the voluntary or involuntary dissolution, liquidation or
winding up of the Company is proposed (other than in competing with a
consolidation, merger, sale, transfer or lease of all or substantially all of
its property,
15
assets and business as an entirety); or (vi) the Company proposes to take any
action which would require an adjustment of the Exercise Rate pursuant to
Section 12,
then the Company shall cause to be given to the registered holder of the Warrant
Certificate at its address appearing on the Warrant register, at least 20 days
(or 10 days in any case specified in clauses (i), (ii) or (iii) above) 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 (w) the date as of which any such subdivision,
combination or reclassification is to be made, or (x) the date as of which the
holders of record of shares of Common Stock to be entitled to receive any such
dividends, rights, options, warrants or distribution are to be determined, or
(y) the initial expiration date set forth in any tender offer or exchange offer
for shares of Common Stock, or (z) the date on which any such consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up is expected
to become effective or consummated, and 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 15 or any defect therein shall not affect the legality or validity of
any distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or the vote upon any action.
SECTION 16. NO RIGHTS AS STOCKHOLDER. Nothing contained in this
Agreement or in the Warrant Certificate shall be construed as conferring upon
the holder hereof or thereof the right to vote or to receive dividends or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders or the election of Directors of the Company or any other matter, or
any rights whatsoever as a shareholder of the Company.
SECTION 17. NOTICES TO THE COMPANY. Any notice or demand authorized or
permitted by this Agreement to be given or made by the registered holder of any
Warrant Certificate to or on the Company shall be in writing and shall be
sufficiently given or made when and if delivered in person or by telecopy or
mailed by registered or certified mail, postage prepaid and return receipt
requested, or if sent by an overnight delivery service (which provides for
evidence of receipt) (until another address is provided in writing to the
Warrant holder by the Company), to the following address:
Green Tree Financial Corporation
1100 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16
Any notice pursuant to this Agreement to be given by the Company to the
registered holder(s) of any Warrant Certificate shall be in writing and shall be
sufficiently given when and if delivered in person or by telecopy or mailed by
registered or certified mail, postage prepaid and return receipt requested, or
if sent by an overnight delivery service (which provides for evidence of
receipt) (until another address is provided by such holder in writing to the
Company) to such holder at the address appearing on the Warrant register of the
Company. Each such notice or other communication provided hereunder shall be
effective (a) if given by telecopy, on the business day (or the next succeeding
business day if the date of delivery is not a business day) when such telecopy
is transmitted to the telecopy number specified and the appropriate answer back
or confirmation is received, and (b) if given by any other means, on the
business day (or the next succeeding business day if the date of delivery is not
a business day) when delivered at the address specified.
SECTION 18. SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its respective successors and assigns hereunder.
SECTION 19. TERMINATION. This Agreement shall terminate immediately
after the Expiration Date. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if the Warrant has been exercised.
SECTION 20. NEW YORK LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT AND EACH WARRANT CERTIFICATE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH PARTY
HERETO HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS WARRANT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 21. BENEFITS OF AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or entity other than the Company and the
registered holder of the Warrant Certificate 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 and the registered holder of the Warrant
Certificate.
17
SECTION 22. INVESTMENT REPRESENTATION. Xxxxxx is acquiring the Warrants
to be issued to Xxxxxx by the Company, and Xxxxxx, upon exercise of the
Warrants, will acquire the shares of Common Stock, issuable upon exercise, all
for its own account with no intention of distributing or reselling the Warrants
or Warrant Shares in any transaction that would be a violation of the securities
laws of the United States of America or any state, without prejudice to the
holder's rights at all times to sell or otherwise dispose of all or part of such
Warrants under a Registration under the Act or an exemption available thereto.
Xxxxxx is aware that neither the Warrants nor the shares of Common Stock
issuable thereunder are registered under the Act or any state or other
jurisdiction's securities laws, and that Xxxxxx must hold indefinitely the
Warrants and the Common Stock unless subsequently registered or an exemption
from registration is available. Xxxxxx understands and agrees that the Warrants
will bear the restrictive legend set forth on the Warrant Certificate and that
the Warrant Shares will bear the legend set forth in Section 4 of this
Agreement. Xxxxxx represents and warrants that it is an "accredited investor" as
that terms is defined in Rule 501 of Regulation D promulgated under the Act.
SECTION 23. MERGER OR CONSOLIDATION OF THE COMPANY. The Company will
not merge or consolidate with or into, or sell, transfer or lease all or
substantially all of its assets or property to, any other person or party unless
the successor or purchasing party, as the case may be (if not the Company),
shall expressly assume, by supplemental agreement, 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 and the board of directors
(or other comparable body) of such surviving entity shall have taken such action
as is equitable and appropriate to substitute new warrants for the Warrants
issued pursuant to this Agreement, or assumed this Agreement, in order to make
the new warrants, as nearly as may be practicable, equivalent to the Warrants.
SECTION 24. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and 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 25. AMENDMENTS. This Agreement may only be amended by a written
instrument executed by the parties hereto.
SECTION 26. CAPTIONS. The captions of the Sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
SECTION 27. INSPECTION OF WARRANT AGREEMENT. The Company 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.
SECTION 28. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment
of any subsequent transfer agent for the Warrant Shares, or any other securities
issuable upon the
18
exercise of the Warrants, the Company will send to each holder a statement
setting forth the name and address of such subsequent transfer agent.
[Signature Page Follows]
19
IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Warrant Agreement to be duly executed, as of the day and year first above
written.
GREEN TREE FINANCIAL CORPORATION
By:
------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:
------------------------------
Name:
Title:
EXHIBIT A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
EXERCISABLE ON OR BEFORE THE LATER OF (I) FEBRUARY 13, 2000,
OR (II) 90 DAYS AFTER THE DATE THAT ALL AMOUNTS DUE AND OWING
UNDER THE LOAN (AS HEREINAFTER DEFINED) HAVE BEEN PAID TO
XXXXXX COMMERCIAL PAPER INC. AND THE LOAN HAS BEEN
TERMINATED.
NO. 1 2,735,688
SHARES OF COMMON STOCK
GREEN TREE FINANCIAL CORPORATION
WARRANT CERTIFICATE
This Warrant Certificate certifies that XXXXXX COMMERCIAL PAPER INC., a
New York corporation ("XXXXXX"), or registered assigns, is the registered holder
of Warrants (the "WARRANTS") expiring the later of (i) 5:00 p.m. New York City
time, on February 13, 2000, or (ii) 5:00 p.m. New York City time, on the date
that is 90 days after the date all amounts due and owing under the Loan (as such
term is defined in the Warrant Agreement (as hereinafter defined)) have been
paid to Xxxxxx and the Loan has been terminated (in either event, the
"EXPIRATION DATE"), to purchase Common Stock, par value $0.01 per share (the
"COMMON STOCK"), of Green Tree Financial Corporation, a Delaware corporation
(the "COMPANY"). This Warrant entitles the holder upon exercise to acquire from
the Company, shares of common stock of the Company (the "WARRANT SHARES") equal
to the number of shares of Common Stock shown above, at an exercise price of
equal to $22.75 per Warrant Share (the "EXERCISE PRICE") 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 Company designated
for such purpose, but only subject to the conditions set forth herein and in
that certain Common Stock Warrant Agreement, between the Company and
Xxxxxx, dated February 13, 1998 (the "WARRANT AGREEMENT") referred to in this
Certificate.
The number of Warrant Shares issuable upon exercise of the Warrant are subject
to adjustment upon the occurrence of certain events set forth in the Warrant
Agreement.
No Warrant may be exercised after the Expiration Date and to the extent
not exercised by such time such Warrant shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth herein and in the Warrant Agreement and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
[Signature Page Follows]
2
IN WITNESS WHEREOF, Green Tree Financial Corporation has caused this Warrant
Certificate to be executed by a duly authorized officer.
Dated: February 13, 1998
GREEN TREE FINANCIAL CORPORATION
By:
--------------------------
Name:
Title:
3
WARRANT CERTIFICATE, cont'd
The Warrant evidenced by this Warrant Certificate is duly authorized,
entitles the holder on exercise to acquire shares of Common Stock, par value
$0.01 per share (the "COMMON STOCK"), of Green Tree Financial Corporation (the
"COMPANY"), and is issued pursuant to that certain Common Stock Warrant
Agreement, dated as of February 13, 1998 (the "WARRANT AGREEMENT"), between the
Company and Xxxxxx Commercial Paper Inc. ("XXXXXX"), 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 Company and the holder (the
word holder means the registered holder) of the Warrant. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company.
The holder of the Warrant evidenced by this Warrant Certificate may
exercise the Warrant by surrendering this Warrant Certificate, with the form of
election to purchase set forth herein properly completed and executed, together
with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In the event that upon any exercise of the Warrant
evidenced hereby, the number of Warrant Shares shall be less than the total
number of Warrant Shares evidenced hereby, there shall be issued to the holder
hereof or his, her or its assignee a new Warrant Certificate evidencing the
portion of the Warrant not exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of the
Warrant (the "EXERCISE RATE") may, subject to certain conditions, be adjusted.
If the Exercise Rate is adjusted, the Warrant Agreement provides that the number
of shares of Common Stock issuable upon the exercise of the Warrant shall be
adjusted. No fractions of a share of Common Stock will be issued upon the
exercise of the Warrant.
The holder of the Warrant is entitled to certain registration rights
with respect to the Common Stock purchasable upon exercise thereof. Such
registration rights are set forth in full in an Registration Rights Agreement,
dated as of February 13, 1998, among the Company and Xxxxxx. A copy of the
Registration Rights Agreement may be obtained by the holder hereof upon written
request to the Company.
The Warrant Certificate, when surrendered at the office of the Company
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 of like tenor evidencing the
Warrant.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company, a new Warrant Certificate of like
tenor evidencing the Warrant shall be issued to the transferee in exchange for
this Warrant Certificate, subject to the limitations
4
provided in the Warrant Agreement, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company may deem and treat the registered holder thereof as the
absolute owner 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 hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrant nor this Warrant Certificate entitles the holder hereof to
any rights of a shareholder of the Company.
---------------------------------------
5
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise Of Warrant)
To Green Tree Financial Corporation:
The undersigned hereby irrevocably elects to exercise the right of
purchase, represented by the within Warrant Certificate for, and to purchase
thereunder ____________ shares of Common Stock as provided therein, and herewith
tenders payment for such shares to the order of GREEN TREE FINANCIAL CORPORATION
in the amount of $.01 per share in accordance with the terms hereof and the
terms of that certain Common Stock Warrant Agreement.
The undersigned requests that a certificate or certificates for such
shares be registered in the name of _____________________ , whose address is
__________________________________________ and that such shares be delivered
along with any cash in lieu of any fractional shares to ______________________
whose address is _______________________________ . If said number of shares is
less than all of the shares of Common Stock purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the remaining
balance of such shares (less any fraction of a share paid in cash) be registered
in the name of ______________________ whose address is
________________________________ and that such shares be delivered to
______________________ whose address is _______________________________ .
Signature:____________________________
Signature of Registered Holder
NOTE: The above signature should
correspond exactly with the name on the
face of this Warrant Certificate.
Date:_________
Signature Guaranteed:_________________________
6
FORM OF ASSIGNMENT
(To Be Executed Only Upon Assignment of Warrant Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto (Name and Address of assignee must be printed or typewritten) the within
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________________________
attorney, to transfer said Warrant Certificate on the books of the within-named
Company, with full power of substitution in the premises.
Date:______________
Signature:_________________________
Signature of Registered Holder
NOTE: The above signature should
correspond exactly with the name on the
face of this Warrant Certificate.
7
EXECUTION COPY
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
EXERCISABLE ON OR BEFORE THE LATER OF (I) FEBRUARY 13, 2000, OR (II) 90
DAYS AFTER THE DATE THAT ALL AMOUNTS DUE AND OWING UNDER THE LOAN (AS
HEREINAFTER DEFINED) HAVE BEEN PAID TO XXXXXX COMMERCIAL PAPER INC. AND THE LOAN
HAS BEEN TERMINATED.
NO. 1 2,735,688
SHARES OF COMMON STOCK
GREEN TREE FINANCIAL CORPORATION
WARRANT CERTIFICATE
This Warrant Certificate certifies that XXXXXX COMMERCIAL PAPER INC., a
New York corporation ("XXXXXX"), or registered assigns, is the registered holder
of Warrants (the "WARRANTS") expiring the later of (i) 5:00 p.m. New York City
time, on February 13, 2000, or (ii) 5:00 p.m. New York City time, on the date
that is 90 days after the date all amounts due and owing under the Loan (as such
term is defined in the Warrant Agreement (as hereinafter defined)) have been
paid to Xxxxxx and the Loan has been terminated (in either event, the
"EXPIRATION DATE"), to purchase Common Stock, par value $0.01 per share (the
"COMMON STOCK"), of Green Tree Financial Corporation, a Delaware corporation
(the "COMPANY"). This Warrant entitles the holder upon exercise to acquire from
the Company, shares of common stock of the Company (the "WARRANT SHARES") equal
to the number of shares of Common Stock shown above, at an exercise
price of equal to $22.75 per Warrant Share (the "EXERCISE PRICE") 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 Company designated
for such purpose, but only subject to the conditions set forth herein and in
that certain Common Stock Warrant Agreement, between the Company and Xxxxxx,
dated February 13, 1998 (the "WARRANT AGREEMENT") referred to in this
Certificate. The number of Warrant Shares issuable upon exercise of the Warrant
are subject to adjustment upon the occurrence of certain events set forth in the
Warrant Agreement.
No Warrant may be exercised after the Expiration Date and to the extent
not exercised by such time such Warrant shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth herein and in the Warrant Agreement and such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
[Signature Page Follows]
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IN WITNESS WHEREOF, Green Tree Financial Corporation has caused this
Warrant Certificate to be executed by a duly authorized officer.
Dated: February 13, 1998
GREEN TREE FINANCIAL CORPORATION
By:
--------------------------
Name:
Title:
3
WARRANT CERTIFICATE, cont'd
The Warrant evidenced by this Warrant Certificate is duly authorized,
entitles the holder on exercise to acquire shares of Common Stock, par value
$0.01 per share (the "COMMON STOCK"), of Green Tree Financial Corporation (the
"COMPANY"), and is issued pursuant to that certain Common Stock Warrant
Agreement, dated as of February 13, 1998 (the "WARRANT AGREEMENT"), between the
Company and Xxxxxx Commercial Paper Inc. ("XXXXXX"), 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 Company and the holder (the
word holder means the registered holder) of the Warrant. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company.
The holder of the Warrant evidenced by this Warrant Certificate may
exercise the Warrant by surrendering this Warrant Certificate, with the form of
election to purchase set forth herein properly completed and executed, together
with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In the event that upon any exercise of the Warrant
evidenced hereby, the number of Warrant Shares shall be less than the total
number of Warrant Shares evidenced hereby, there shall be issued to the holder
hereof or his, her or its assignee a new Warrant Certificate evidencing the
portion of the Warrant not exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of the
Warrant (the "EXERCISE RATE") may, subject to certain conditions, be adjusted.
If the Exercise Rate is adjusted, the Warrant Agreement provides that the number
of shares of Common Stock issuable upon the exercise of the Warrant shall be
adjusted. No fractions of a share of Common Stock will be issued upon the
exercise of the Warrant.
The holder of the Warrant is entitled to certain registration rights
with respect to the Common Stock purchasable upon exercise thereof. Such
registration rights are set forth in full in an Registration Rights Agreement,
dated as of February 13, 1998, among the Company and Xxxxxx. A copy of the
Registration Rights Agreement may be obtained by the holder hereof upon written
request to the Company.
The Warrant Certificate, when surrendered at the office of the Company
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 of like tenor evidencing the
Warrant.
4
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company, a new Warrant Certificate of like
tenor evidencing the Warrant shall be issued to the transferee in 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 may deem and treat the registered holder thereof as the
absolute owner 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 hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrant nor this Warrant Certificate entitles the holder hereof to
any rights of a shareholder of the Company.
---------------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Warrant Agreement to be duly executed, as of the day and year first above
written.
GREEN TREE FINANCIAL CORPORATION
By: /S/ XXXXXX X. XXXX
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXX COMMERCIAL PAPER INC.
By: /S/ XXXXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
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