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WARRANT AGREEMENT
Dated as of March 12, 1997
by and between
OLYMPIC FINANCIAL LTD.
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Warrant Agent
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WARRANT AGREEMENT
TABLE OF CONTENTS**
Page
SECTION 1. Appointment of Warrant Agent. . . . . . . . . . . . . . . . 1
SECTION 2. Issuance of Warrants. . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Warrant Certificates. . . . . . . . . . . . . . . . . . . . 1
SECTION 4. Execution of Warrant Certificates . . . . . . . . . . . . . 2
SECTION 5. Transfers of Warrants Prior to the Separation of Warrants
and Notes; Separation of Warrants and Notes . . . . . . . . 2
SECTION 6. Registration and Countersignature . . . . . . . . . . . . . 3
SECTION 7. Registration of Transfers and Exchanges . . . . . . . . . . 3
(a) Transfer and Exchange of Definitive Warrants . . . . . . 3
(b) Exchange or Transfer of a Definitive Warrant for a
Beneficial Interest in a Global Warrant. . . . . . . . . 4
(c) Transfer and Exchange of Global Warrants . . . . . . . . 4
(d) Exchange of a Beneficial Interest in a Global Warrant
for a Definitive Warrant . . . . . . . . . . . . . . . . 4
(e) Restrictions on Transfer and Exchange of Global
Warrants . . . . . . . . . . . . . . . . . . . . . . . . 4
(f) Countersigning of Definitive Warrants in Absence of
Depositary . . . . . . . . . . . . . . . . . . . . . . . 5
(g) Cancellation of Global Warrant . . . . . . . . . . . . . 5
(h) Obligations with Respect to Transfers and Exchanges of
Warrants . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 8. Terms of Warrants; Exercise of Warrants . . . . . . . . . . 5
SECTION 9. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 10. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 7
SECTION 11. Mutilated or Missing Warrant Certificates. . . . . . . . . 7
SECTION 12. Reservation of Warrant Shares. . . . . . . . . . . . . . . 7
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** This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms or provisions.
(ii)
SECTION 13. Obtaining Stock Exchange Listings . . . . . . . . . . . . . . . 8
SECTION 14. Adjustment of Exercise Price and Number of Warrant Shares
Issuable. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Adjustment for Change in Capital Stock. . . . . . . . . . . . 8
(b) Adjustment for Rights Issue . . . . . . . . . . . . . . . . . 9
(c) Adjustment for Other Distributions. . . . . . . . . . . . . . 10
(d) Adjustment for Common Stock Issue.. . . . . . . . . . . . . . 11
(e) Adjustment for Convertible Securities Issue . . . . . . . . . 12
(f) Current Market Price. . . . . . . . . . . . . . . . . . . . . 13
(g) Consideration Received. . . . . . . . . . . . . . . . . . . . 13
(h) When De Minimis Adjustment May Be Deferred. . . . . . . . . . 14
(i) When No Adjustment Required . . . . . . . . . . . . . . . . . 14
(j) Notice of Adjustment. . . . . . . . . . . . . . . . . . . . . 14
(k) Voluntary Reduction . . . . . . . . . . . . . . . . . . . . . 15
(l) Notice of Certain Transactions. . . . . . . . . . . . . . . . 15
(m) Reorganization of the Company . . . . . . . . . . . . . . . . 15
(n) Company Determination Final . . . . . . . . . . . . . . . . . 16
(o) Warrant Agent's Disclaimer. . . . . . . . . . . . . . . . . . 16
(p) When Issuance or Payment May Be Deferred. . . . . . . . . . . 16
(q) Adjustment in Number of Shares. . . . . . . . . . . . . . . . 16
(r) Form of Warrants. . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 15. No Dilution or Impairment . . . . . . . . . . . . . . . . . . . 17
SECTION 16. Fractional Interests. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 17. Notices to Warrant Holders. . . . . . . . . . . . . . . . . . . 18
SECTION 18. Merger, Consolidation or Change of Name of Warrant Agent. . . . 19
SECTION 19. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 20. Registration Rights . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 21. Change of Warrant Agent . . . . . . . . . . . . . . . . . . . . 23
SECTION 22. Notices to the Company and Warrant Agent. . . . . . . . . . . . 24
SECTION 23. Supplements and Amendments. . . . . . . . . . . . . . . . . . . 25
SECTION 24. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 25. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 26. Governing Law; Jurisdiction . . . . . . . . . . . . . . . . . . 25
(iii)
SECTION 27. Benefits of this Agreement. . . . . . . . . . . . . . . . . . . 25
SECTION 28. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 29. Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 26
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
(iv)
WARRANT AGREEMENT, dated as of March 12, 1997, between Olympic
Financial Ltd., a Minnesota corporation (the "COMPANY"), and Norwest Bank
Minnesota, National Association, as warrant agent (the "WARRANT AGENT").
WHEREAS, the Company has entered into an underwriting agreement (the
"UNDERWRITING AGREEMENT"), dated March 7, 1997 with Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, X.X. Xxxxxx & Co. and Bear, Xxxxxxx & Co. Inc. (the
"UNDERWRITERS") in which the Company has agreed to sell to the Underwriters
300,000 units (the "UNITS"), consisting of $300,000,000 principal amount of the
Company's 11 1/2% Senior Notes due 2007 (the "NOTES") and 300,000 Warrants, as
hereinafter described (each, a "WARRANT"), to purchase an aggregate of 2,052,000
shares of Common Stock, par value $0.01 per share (the "COMMON STOCK"), of the
Company (the Common Stock issuable upon exercise of the Warrants being referred
to herein as the "WARRANT SHARES"). The Notes will be issued pursuant to an
indenture (the "INDENTURE") between the Company and Norwest Bank Minnesota,
National Association, as trustee (the "TRUSTEE"). Each Unit consists of one
$1,000 Note and one Warrant. Each Warrant entitles the holder of the Warrant
upon exercise to receive from the Company, as adjusted as provided herein, 6.84
fully paid and nonassessable shares of Common Stock of the Company in exchange
for the Exercise Price of $11.00, subject to adjustment under certain
circumstances, as provided herein;
WHEREAS, the Warrants and the Notes will be sold in units and shall
not be separately transferable until the earliest to occur of (i) one year from
the date of issuance of the Notes and (ii) such other date as may be designated
by Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the "SEPARATION DATE");
and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as hereinafter defined) and other matters as
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. ISSUANCE OF WARRANTS. Warrants shall be originally issued
in connection with the issuance of the Units and shall not be separately
transferable from the Notes until on or after the Separation Date as provided in
Section 5 hereof.
SECTION 3. WARRANT CERTIFICATES. The Warrants will be issued in
global form (the "GLOBAL WARRANTS"), substantially in the form of Exhibit A
(including the text accompanying footnotes 1 and 2 thereto but excluding such
footnotes), and in definitive form (the "DEFINITIVE WARRANTS"), substantially in
the form of Exhibit A (not including footnotes 1 and 2 thereto or the text
accompanying such footnotes). Each Definitive Warrant shall represent such of
the outstanding Warrants as shall be specified therein and each Global Warrant
shall provide that it shall represent the aggregate amount of outstanding
Warrants from time to time endorsed thereon and that the aggregate amount of
outstanding Warrants represented thereby may from time to time be reduced or
increased, as appropriate. Any endorsement of a Global Warrant to reflect the
amount of any increase or decrease in the amount of outstanding Warrants
represented thereby shall be made by the Warrant Agent and the depositary with
respect to the Global Warrants (the "DEPOSITARY") in accordance with
instructions given by the holder thereof. The Depository Trust Company shall
act as the Depositary until a successor shall be appointed by the Company and
the Warrant Agent. Upon request, a holder may receive from the Depositary and
the Warrant Agent separate Definitive Warrants as set forth in Section 7 below.
Any certificates (the "WARRANT CERTIFICATES") evidencing the Global Warrants or
the Definitive Warrants to be delivered pursuant to this Agreement shall be
substantially in the form set forth in Exhibit A attached hereto.
SECTION 4. EXECUTION OF WARRANT CERTIFICATES. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its
President, its Chief Executive Officer, its Chief Operating Officer, its Chief
Financial Officer, or one of its Vice Presidents. Each such signature upon the
Warrant Certificates may be in the form of a facsimile signature of the present
or any future Chairman of the Board, President Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, or Vice President and may be
imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, or Vice President, notwithstanding
the fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of he or she shall have ceased to hold such office.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
Warrant Certificates shall be dated the date of countersignature by
the Warrant Agent.
SECTION 5. TRANSFERS OF WARRANTS PRIOR TO THE SEPARATION OF WARRANTS
AND NOTES; SEPARATION OF WARRANTS AND NOTES. Notwithstanding the provisions of
Section 7 hereof, on or after the Separation Date, the registered holder of a
Warrant Certificate containing a Warrant Legend (as hereinafter defined) may
surrender such Warrant Certificate accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney to the Warrant Agent, at
its corporate trust office in Norwest Bank Minnesota, National Association,
Xxxxxxxxx Xxxxxxxx, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx 00000 (the "WARRANT
AGENT OFFICE") for the exchange of such Warrant containing a Warrant Legend, in
whole or in part, for a new Warrant Certificate or Warrant Certificates not
containing the first paragraph of the Warrant Legend (such surrender and
exchange being referred to herein as a "SEPARATION" and the related Warrants
being referred to as "SEPARATED").
Until the Separation Date, no Warrant may be sold, assigned or
otherwise transferred to any person unless simultaneously with such transfer,
the Warrant Agent receives confirmation from the Trustee, that the holder
thereof has requested a transfer to the same transferee of one Warrant (subject
to adjustment under Section 14 hereof) for each $1,000 in aggregate principal
amount of Notes so transferred. In connection with the foregoing, upon original
issuance (if prior to the Separation Date) and, thereafter, until Separation,
the Warrant Certificates will bear the following legend (the "WARRANT LEGEND"):
THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE NOT TRANSFERABLE
SEPARATELY FROM THE COMPANY'S 11 1/2% SENIOR NOTES DUE
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2007 (THE "NOTES") ORIGINALLY SOLD AS A UNIT WITH SUCH WARRANTS UNTIL THE
EARLIEST TO OCCUR OF (I) ONE YEAR FROM THE DATE OF ISSUANCE OF THE NOTES OR
(II) SUCH OTHER DATE AS MAY BE DESIGNATED BY XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION (THE "SEPARATION DATE").
THE COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF THE COMPANY (THE
"COMMON STOCK") FOR WHICH THIS WARRANT IS EXERCISABLE MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND ANY APPLICABLE STATE SECURITIES
LAWS OR AN APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS.
ACCORDINGLY, NO WARRANT HOLDER SHALL BE ENTITLED TO EXERCISE SUCH HOLDER'S
WARRANTS AT ANY TIME UNLESS, AT THE TIME OF EXERCISE, (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT RELATING TO THE SHARES OF COMMON STOCK
ISSUABLE UPON THE EXERCISE OF THIS WARRANT (THE "WARRANT SHARES") HAS BEEN
FILED WITH, AND DECLARED EFFECTIVE BY, THE SECURITIES AND EXCHANGE
COMMISSION (THE "SEC"), AND NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF
SUCH REGISTRATION STATEMENT HAS BEEN ISSUED BY THE SEC OR (ii) THE ISSUANCE
OF THE WARRANT SHARES IS PERMITTED PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
SECTION 6. REGISTRATION AND COUNTERSIGNATURE. The Warrant Agent, on
behalf of the Company, shall number and register the Warrant Certificates in a
register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrant Agent shall, upon written instructions of the Chairman of the Board,
President Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer or Vice President of the Company, initially countersign and deliver
Warrants entitling the holders thereof to purchase not more than the number of
Warrant Shares referred to above in the first recital hereof and shall
countersign and deliver Warrants as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the registered
holder(s) of the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for all purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary.
SECTION 7. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE WARRANTS. When Definitive
Warrants are presented to the Warrant Agent with a request:
(i) to register the transfer of the Definitive Warrants; or
(ii) to exchange such Definitive Warrants for an equal number of Definitive
Warrants of other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met; PROVIDED, HOWEVER, that the
Definitive Warrants presented or surrendered for
3
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Warrant Agent, duly
executed by the holder thereof or by his attorney, duly authorized in writing.
Upon any such registration of transfer, a new Definitive Warrant shall be issued
to the transferee(s) and the surrendered Definitive Warrant shall be cancelled
by the Warrant Agent. Cancelled Definitive Warrants shall thereafter be
disposed of in a manner satisfactory to the Company.
(b) EXCHANGE OR TRANSFER OF A DEFINITIVE WARRANT FOR A BENEFICIAL
INTEREST IN A GLOBAL WARRANT. A Definitive Warrant may be exchanged for a
beneficial interest in a Global Warrant upon satisfaction of the requirements
set forth below. Upon receipt by the Warrant Agent of a Definitive Warrant,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Warrant Agent, together with written instructions directing
the Warrant Agent to make, or to direct the Depositary to make, an endorsement
on the Global Warrant to reflect an increase in the number of Warrants
represented by the Global Warrant, then the Warrant Agent shall cancel such
Definitive Warrant and cause, or direct the Depositary to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Warrant Agent, the number of Warrants represented by the Global Warrant
to be increased accordingly. If no Global Warrants are then outstanding, the
Company shall issue and the Warrant Agent shall countersign a new Global Warrant
representing the appropriate number of Warrants and Warrant Shares.
(c) TRANSFER AND EXCHANGE OF GLOBAL WARRANTS. The transfer and
exchange of Global Warrants or beneficial interests therein shall be effected
through the Depositary, in accordance with this Warrant Agreement and the
procedures of the Depositary therefor.
(d) EXCHANGE OF A BENEFICIAL INTEREST IN A GLOBAL WARRANT FOR A
DEFINITIVE WARRANT.
(i) Any person having a beneficial interest in a Global Warrant may upon
request exchange such beneficial interest for a Definitive Warrant.
Upon receipt by the Warrant Agent of written instructions or such
other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any person having a beneficial
interest in a Global Warrant then the Warrant Agent shall cause, in
accordance with the standing instructions and procedures existing
between the Depositary and Warrant Agent, the number of Warrants
represented by the Global Warrant to be reduced and, following such
reduction, the Company shall execute and the Warrant Agent shall
countersign and deliver to the transferee a Definitive Warrant.
(ii) Definitive Warrants issued in exchange for a beneficial interest in a
Global Warrant pursuant to this Section 7(d) shall be registered in
such names as the Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Warrant
Agent. The Warrant Agent shall deliver such Definitive Warrants to
the persons in whose names such Warrants are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL WARRANTS.
Notwithstanding any other provisions of this Warrant Agreement (other than the
provisions set forth in subsection (f) of this Section 7), a Global Warrant may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
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(f) COUNTERSIGNING OF DEFINITIVE WARRANTS IN ABSENCE OF DEPOSITARY.
If at any time:
(i) the Depositary for the Global Warrants notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the
Global Warrants and a successor Depositary for the Global Warrants is
not appointed by the Company within 90 days after delivery of such
notice; or
(ii) the Company, in its sole discretion, notifies the Warrant Agent in
writing that it elects to cause the issuance of Definitive Warrants
under this Warrant Agreement,
then the Company shall execute, and the Warrant Agent, upon written instructions
signed by two officers of the Company, shall countersign and deliver Definitive
Warrants, in an aggregate number equal to the number of Warrants represented by
Global Warrants, in exchange for such Global Warrants.
(g) CANCELLATION OF GLOBAL WARRANT. At such time as all beneficial
interests in Global Warrants have either been exchanged for Definitive Warrants,
redeemed, repurchased or cancelled, all Global Warrants shall be returned to or
retained and cancelled by the Warrant Agent.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF WARRANTS.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of Section 6 and this Section 7,
Definitive Warrants and Global Warrants as required pursuant to the
provisions of this Section 7.
(ii) All Definitive Warrants and Global Warrants issued upon any
registration of transfer or exchange of Definitive Warrants or Global
Warrants shall be the valid obligations of the Company, entitled to
the same benefits under this Warrant Agreement, as the Definitive
Warrants or Global Warrants surrendered upon such registration of
transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any Warrant,
the Warrant Agent and the Company may deem and treat the person in
whose name any Warrant is registered as the absolute owner of such
Warrant and neither the Warrant Agent nor the Company shall be
affected by notice to the contrary.
(iv) No service charge shall be made to a holder for any registration,
transfer or exchange.
SECTION 8. TERMS OF WARRANTS; EXERCISE OF WARRANTS. Subject to the
terms of this Agreement, each Warrant holder shall have the right, which may be
exercised on or after the Separation Date until 5:00 p.m., New York, New York
time on March 15, 2007 (the "EXPIRATION DATE"), to exercise each Warrant and
receive from the Company the number of fully paid and nonassessable Warrant
Shares which the holder may at the time be entitled to receive on exercise of
such Warrants and payment of the Exercise Price then in effect for such Warrant
Shares; PROVIDED, HOWEVER, that no Warrant holder shall be entitled to exercise
such holder's Warrants at any time unless, at the time of exercise, (i) a
registration statement under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), relating to the Warrant Shares has been filed with, and
declared effective by, the Securities and Exchange Commission (the "SEC"), and
no stop order suspending the effectiveness of such registration statement has
been issued by the SEC or (ii) the issuance of the Warrant Shares is permitted
pursuant to an exemption from the
5
registration requirements of the Securities Act. Each Warrant, when exercised,
will entitle the holder thereof to purchase 6.84 fully paid and nonassessable
shares of Common Stock at the Exercise Price. Any Warrant not exercised prior
to 5:00 p.m., New York City time, on the Expiration Date shall become void and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease as of such time. No adjustments as to dividends will be made upon
exercise of the Warrants.
The Warrants may be exercised by surrendering to the Warrant Agent the
Warrant Certificates evidencing the Warrants to be exercised with the
accompanying form of election to purchase properly completed and executed,
together with payment of the Exercise Price. Payment of the Exercise Price may
be made in the form of cash or by certified or official bank check payable to
the order of the Company.
Subject to the provisions of Section 10 hereof, upon such surrender of
Warrants and payment of the Exercise Price, the Company shall issue and cause to
be delivered with all reasonable dispatch to or upon the written order of the
holder and in such name or names as the Warrant holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable upon
the exercise of such Warrants together with cash, if any, as provided in Section
16 hereof; 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
(m) of Section 14 hereof, [or a tender offer or an exchange offer for shares of
Common Stock of the Company shall be made], upon such surrender of Warrants and
payment of the Exercise Price as aforesaid, the Successor Guarantor (as
hereinafter defined), the Company or the Warrant Agent, as applicable, 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 such Warrants in the manner described in this sentence together
with cash, if any, as provided in Section 16 hereof. Such certificate or
certificates 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 such Warrants and payment of
the Exercise Price. No fractional shares shall be issued upon exercise of any
Warrants in accordance with Section 16 hereof. The Company will pay to the
holder of the Warrant at the time of exercise an amount in cash equal to the
current market value of any such fractional share of Common Stock less a
corresponding fraction of the Exercise Price.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part (in whole shares) 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 Expiration Date, a new certificate evidencing the remaining Warrant or
Warrants will be issued, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrant Certificate or
Certificates pursuant to the provisions of this Section and of Section 4 of this
Agreement, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall
be cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall be
held by the Warrant Agent until termination of its duties hereunder, at which
time it shall deliver such cancelled Warrants to any successor Warrant Agent, if
applicable, otherwise to the Company. Upon receipt by the Company, such
cancelled Warrant Certificates shall then be disposed of by the Company in
accordance with applicable law. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants.
6
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the holders during
normal business hours at its office. The Company shall supply the Warrant Agent
from time to time with such numbers of copies of this Agreement as the Warrant
Agent may request.
SECTION 9. REPORTS. Whether or not required by the rules and
regulations of the SEC, so long as any Warrants are outstanding, the Company
shall furnish to the Warrant Agent and mail to the holders of Warrants (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed with
the SEC on Form 8-K if the Company were required to file such reports. In
addition, whether or not required by the rules and regulations of the SEC, the
Company will file a copy of all such information and reports with the SEC for
public availability (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.
SECTION 10. PAYMENT OF TAXES. No service charge shall be made to any
holder of a Warrant for any exercise, exchange or registration of transfer of
Warrant Certificates, and the Company will pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants or to any Separation; 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 any Warrant Certificates or any certificates for
Warrant Shares in a name other than that of the registered holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and the Company shall
not be required to issue or deliver such Warrant Certificates 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 11. MUTILATED OR MISSING WARRANT CERTIFICATES. If any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue and the Warrant Agent may countersign, in exchange
and substitution for and upon cancellation of the mutilated Warrant Certificate,
or in lieu of and in substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity and security therefor, if requested, also
satisfactory to them. Applicants for such substitute Warrant Certificates shall
also comply with such other reasonable regulations and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe.
SECTION 12. RESERVATION OF WARRANT SHARES. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or 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 Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
The Company or the transfer agent for the Common Stock (the "COMMON
STOCK TRANSFER AGENT") 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 represented by the Warrants will be irrevocably authorized and directed
at all times to reserve such number of authorized shares as shall be required
for such purpose.
7
The Company will keep a copy of this Agreement on file with the Common Stock
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 Warrant Agent is hereby irrevocably authorized
to requisition from time to time from such Common Stock Transfer Agent the stock
certificates required to honor outstanding Warrants upon exercise thereof in
accordance with the terms of this Agreement. The Company will supply such
Common Stock 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 16 hereof. The Company will furnish such Common Stock
Transfer Agent a copy of all notices of adjustments and certificates related
thereto, transmitted to each holder pursuant to Section 17 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 14 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take all corporate action necessary, in
the opinion of its counsel (which may be counsel employed by the Company), in
order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will be, upon payment of the Exercise Price and issuance
thereof, fully paid, nonassessable, free of preemptive rights and free from all
taxes, liens, charges and security interests with respect to the issue thereof.
SECTION 13. OBTAINING STOCK EXCHANGE LISTINGS. The Company shall also
from time to time take all action necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the New York Stock Exchange or other principal securities exchanges and markets
within the United States of America, if any, on which other shares of Common
Stock are then listed.
SECTION 14. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 14. For purposes of this
Section 14, "COMMON STOCK" means the Common Stock 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:
(1) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
8
(4) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of
its capital stock,
then the Exercise Price and the number and kind of shares of capital stock of
the Company issuable upon the exercise of a Warrant (as in effect immediately
prior to such action) shall be proportionately adjusted so that the holder of
any Warrant thereafter exercised may receive the aggregate number and kind of
shares of capital stock of the Company which he would have owned immediately
following such action if such Warrant had been exercised immediately prior to
such action.
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 may receive
shares of two or more classes or series of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes or series of capital stock. After such allocation, the exercise
privilege and the Exercise Price of each class or series of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section 14.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) ADJUSTMENT FOR RIGHTS ISSUE.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 60 days
after the record date mentioned below to purchase shares of Common Stock or
securities convertible into, or exchangeable or exercisable for, Common Stock at
a price per share (or with an initial conversion, exchange or exercise price)
less than the current market price per share on that record date, the Exercise
Price shall be adjusted in accordance with the following formula:
O + N X P
-----
E' = E x M
-----------------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
9
M = the current market price per share of Common Stock on the record date.
The adjustment pursuant to this subsection (b) shall be made
successively whenever any such rights, options or warrants are issued and shall
become effective immediately after the record date for the determination of
stockholders entitled to receive the rights, options or warrants. If at the end
of the period during which such rights, options or warrants are exercisable, not
all rights, options or warrants shall have been exercised, the Exercise Price
shall be immediately readjusted to what it would have been if "N" in the above
formula had been the number of shares actually issued.
(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If the Company distributes to all holders of its Common Stock any of
its assets (including cash), debt securities, preferred stock or any rights or
warrants to purchase debt securities, assets or other securities of the Company,
the Exercise Price shall be adjusted in accordance with the following formula:
E' = E x M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the current market price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants applicable to one share of Common Stock. The Board
of Directors shall determine the fair market value.
The adjustment pursuant to this subsection (c) shall be made
successively whenever any such distribution is made and shall become effective
immediately after the record date for the determination of stockholders entitled
to receive the distribution.
Notwithstanding the foregoing, if "F" in the above formula equals or
exceeds "M" in the above formula, then "M" in the above formula shall be equal
to the fair market value per share of the Common Stock on the record date as
determined in good faith by the Board of Directors and described in a Board
resolution which shall be filed with the Warrant Agent.
This subsection (c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of the Company prepared in accordance with generally accepted
accounting principles. Also, this subsection (c) does not apply to rights,
options or warrants referred to in subsection (b) of this Section 14.
(d) ADJUSTMENT FOR COMMON STOCK ISSUE.
10
If the Company issues shares of Common Stock for a consideration per
share less than the current market price per share of Common Stock on the date
the Company fixes the offering price of such additional shares, the Exercise
Price shall be adjusted in accordance with the following formula:
P
--
E' = E x O + M
------------
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares of Common Stock outstanding immediately prior to
the issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share of Common Stock on the date of
issuance of such additional shares.
A = the number of shares of Common Stock outstanding immediately after the
issuance of such additional shares.
The adjustment pursuant to this subsection (d) 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:
(1) any of the transactions described in subsections (a), (b) and
(c) of this Section 14;
(2) the exercise of Warrants or other warrants outstanding on the
date of this Agreement, or the conversion or exchange of other securities
convertible into or exchangeable for Common Stock;
(3) Common Stock issued to the Company's employees, officers or
directors under bona fide employee benefit plans adopted by the Board of
Directors and approved by the holders of Common Stock when required by law,
if such Common Stock would otherwise be covered by this subsection (d); but
only to the extent that the aggregate number of shares excluded hereby and
issued after the date of this Warrant Agreement shall not exceed 10% of the
Common Stock outstanding at the time of the adoption of such plan,
exclusive of antidilution adjustment thereunder;
(4) Common Stock issuable upon the exercise of rights or warrants
issued to the holders of Common Stock;
11
(5) Common Stock issued to shareholders of any person which
merges into the Company in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger;
(6) Common Stock issued in a bona fide public offering pursuant
to a firm commitment underwriting; or
(7) Common Stock issued in a bona fide private placement through
a placement agent which is a member firm of the National Association of
Securities Dealers, Inc. (except to the extent that any discount from the
current market price attributable to restrictions on transferability of the
Common Stock, as determined in good faith by the Board of Directors and
described in a Board resolution which shall be filed with the Warrant
Agent, shall exceed 20% of the then current market price).
(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 (a)(4), (a)(5), (b) and (c) of this Section 14) 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 Price shall be adjusted in accordance
with the following formula:
P
--
E' = E x O + M
------------
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares of Common Stock outstanding immediately prior to
the issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the current market price per share on the date of issuance of such
securities.
D = the maximum number of shares of Common Stock deliverable upon
conversion of or in exchange for such securities at the initial
conversion or exchange rate.
The adjustment pursuant to this subsection (e) 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 Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such
12
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:
(1) convertible securities issued to shareholders of any person
which 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;
(2) convertible securities issued in a bona fide public offering
pursuant to a firm commitment underwriting;
(3) convertible securities issued in a bona fide private
placement through a placement agent which is a member firm of the National
Association of Securities Dealers, Inc. (except to the extent that any
discount from the current market price attributable to restrictions on
transferability of Common Stock issuable upon conversion, as determined in
good faith by the Board of Directors and described in a Board resolution
which shall be filed with the Warrant Agent, shall exceed 20% of the then
current market price); or
(4) stock options issued to the Company's employees, officers or
directors under bona fide employee benefit plans adopted by the Board of
Directors and approved by the holders of Common Stock when required by law,
if such stock options would otherwise be covered by this subsection (e).
(f) CURRENT MARKET PRICE.
In subsections (b), (c), (d) and (e) of this Section 14 and in Section
16, the current market price per share of Common Stock on any date is the
average of the Quoted Prices of the Common Stock for 30 consecutive trading days
commencing 45 trading days before the date in question. The "QUOTED PRICE" of
the Common Stock is the last reported sales price of the Common Stock as
reported by the New York Stock Exchange, or if the Common Stock is reported by
NASDAQ, National Market System or listed on another securities exchange, the
last reported sales price of the Common Stock on such exchange which shall be
for consolidated trading if applicable to such exchange, or if neither so
reported or listed, the last reported bid price of the Common Stock. In the
absence of one or more such quotations, the Board of Directors of the Company
shall determine the current market price on the basis of such quotations as it
in good faith considers appropriate.
(g) CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received
pursuant to subsections (d) and (e) of this Section 14, the following shall
apply:
(1) 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;
13
(2) 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 (irrespective of the accounting
treatment thereof), whose determination shall be conclusive, and described
in a Board resolution which shall be filed with the Warrant Agent; and
(3) in the case of the issuance of securities convertible into
or exchangeable for shares of Common Stock, 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 (1) and (2) of this subsection).
(h) WHEN DE MINIMIS ADJUSTMENT MAY BE DEFERRED.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Section 14 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
(i) WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in
subsections (a), (b), (c), (d) or (e) of this Section 14 if Warrant holders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction.
No adjustment need be made for rights to purchase Common Stock
pursuant to any of the Company's plans for reinvestment of dividends or
interest.
No adjustment need be made for a change in the par value, or from par
value to no par value, or from no par value to par value, of the Common Stock.
To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue on the cash.
Notwithstanding any other provision of this Section 14, no adjustment
to the Exercise Price shall reduce the Exercise Price below the then par value
per share of the Common Stock, and any such purported adjustment shall instead
reduce the Exercise Price to such par value. The Company hereby covenants not
to take any action to increase the par value per share of the Common Stock.
(j) NOTICE OF ADJUSTMENT.
Whenever the Exercise Price or the number of Warrants issuable upon
exercise of each Warrant is adjusted, the Company shall provide the notices
required by Section 17 hereof.
14
(k) VOLUNTARY REDUCTION.
The Company from time to time may, as the Board of Directors deems
appropriate, reduce the Exercise Price by any amount for any period of time if
the period is at least 20 days and if the reduction is irrevocable during the
period; PROVIDED, HOWEVER, that in no event may the Exercise Price be less than
the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to
Warrant holders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced Exercise Price takes effect. The
notice shall state the reduced Exercise Price and the period it will be in
effect.
A reduction of the Exercise Price pursuant to this Section 14(k),
other than a reduction which the Company has irrevocably committed will be in
effect for so long as any Warrants are outstanding, does not change or adjust
the Exercise Price otherwise in effect for purposes of subsections (a), (b),
(c), (d) and (e) of this Section 14.
(l) NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) The Company takes any action that would require an
adjustment in the Exercise Price pursuant to subsections (a), (b), (c), (d)
or (e) of this Section 14 and if the Company does not arrange for Warrant
holders to participate pursuant to subsection (i) of this Section 14;
(2) The Company takes any action that would require a
supplemental Warrant Agreement pursuant to subsection (m) of this Section
14; or
(3) there is a liquidation or dissolution of the Company,
the Company shall mail to Warrant holders and the Warrant Agent 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.
(m) REORGANIZATION OF THE COMPANY.
(1) 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 record date (or, if none, 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 (any such person, the "SUCCESSOR
GUARANTOR"), shall enter into a supplemental Warrant Agreement so
15
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this
Section 14. The Successor Guarantor shall mail to Warrant holders a notice
describing the supplemental Warrant Agreement. If the issuer of securities
deliverable upon exercise of Warrants 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.
(2) Notwithstanding paragraph (1) of this Section 14(m), in the
case of any merger, reverse stock split, or other transaction in which the
publicly held Common Stock shall be converted into the right to receive a
consideration consisting solely of cash, (A) this Warrant Agreement and
each Warrant shall terminate and (B) each holder of a Warrant, without
having to take any action other than the surrendering of such Warrant to
the Company, shall receive an amount equal to the amount (if any) by which
the price per share payable to, or which would be received by, any public
holder of Common Stock in connection with such transaction exceeds the
Exercise Price effective at that time.
(3) If this subsection (m) applies, subsections (a), (b), (c),
(d) and (e) of this Section 14 do not apply.
(n) COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to subsection (a), (c), (d), (e), (f), (g) or (i) of this Section 14 is
conclusive.
(o) WARRANT AGENT'S DISCLAIMER.
The Warrant Agent has no duty to determine when an adjustment under
this Section 14 should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under subsection (m) of this Section 14 are correct. The
Warrant Agent makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent shall
not be responsible for the Company's failure to comply with this Section 14.
(p) WHEN ISSUANCE OR PAYMENT MAY BE DEFERRED.
In any case in which this Section 14 shall require that an adjustment
in the Exercise Price 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 Price
and (ii) paying to such holder any amount in cash in lieu of a fractional share
pursuant to Section 16 hereof; 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.
16
(q) ADJUSTMENT IN NUMBER OF SHARES.
Upon each adjustment of the Exercise Price pursuant to this Section
14, each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Common Stock (calculated to
the nearest hundredth) obtained from the following formula:
N'= N x E
---
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(r) FORM OF WARRANTS.
Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 15. NO DILUTION OR IMPAIRMENT. (a) If any event shall occur as to
which the provisions of Section 14 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 14, then, in each such case, the Company shall appoint an investment
banking firm of recognized national standing, or any other financial expert that
does not (or whose directors, officers, employees, affiliates or stockholders do
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 stockholders 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 14, necessary to
preserve, without dilution, the purchase rights, represented by the Warrants.
Upon receipt of such opinion, the Company will promptly mail a copy thereof to
the holders of the Warrants and shall make the adjustments described therein.
(b) The Company will not, by amendment of its certificate 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
Warrants, 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
17
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (1) 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 the Warrants
from time to time outstanding and (2) will not take any action which results in
any adjustment of the Exercise Price if the total number of Warrant Shares
issuable after the action upon the exercise of all of the Warrants would exceed
the total number of shares of Common Stock then authorized by the Company's
certificate 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 14(m) shall not be prohibited by or
require any adjustment under this Section 15.
SECTION 16. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 16,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall notify the Warrant Agent in writing of the amount to be paid in
lieu of the fraction of a Warrant Share and concurrently pay or provide to the
Warrant Agent for payment to the Warrant holder an amount in cash equal to the
product of (i) such fraction of a Warrant Share and (ii) the difference between
the current market price of a share of Common Stock over the Exercise Price.
SECTION 17. NOTICES TO WARRANT HOLDERS. Upon any adjustment of the
Exercise Price or the number of Warrant Shares issuable upon the exercise of
each Warrant pursuant to Section 14 hereof, the Company shall within 15 days
thereafter (i) cause to be filed with the Warrant Agent a certificate of a firm
of independent public accountants of recognized standing selected by the Board
of Directors (who may be the regular auditors of the Company) setting forth the
Exercise Price 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 Price, upon exercise of a Warrant and payment of
the adjusted Exercise Price, which certificate shall be conclusive evidence of
the correctness of the matters set forth therein, and (ii) cause to be given to
each of the registered holders of the Warrant Certificates at such registered
holder's address appearing on the Warrant register written notice of such
adjustments by first-class mail, postage prepaid. 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 17.
In case:
(a) the Company shall authorize the issuance to all holders of shares
of Common Stock of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all holders of
shares of Common Stock of 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 14 hereof); or
(c) 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
18
and assets of the Company substantially as an entirety, or of any
reclassification or change of Common Stock issuable upon exercise of the
Warrants (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company proposes to take any action (other than actions of
the character described in Section 14(a)) which would require an adjustment of
the Exercise Price pursuant to Section 14;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered holders of the Warrant Certificates at his
address appearing on the Warrant register, at least 15 days (or 10 days in any
case specified in clauses (a) or (b) 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 (i)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights, options, warrants or distribution are to be
determined, or (ii) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (iii) the date on which any such
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 17 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, lease, dissolution, liquidation or winding up, or the vote
upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 18. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto, PROVIDED that such corporation would be
eligible for appointment as a successor warrant agent under the provisions of
Section 21 hereof. In case at the time such successor to the Warrant Agent
shall succeed to the agency created by this Agreement, and in case at that time
any of the Warrant Certificates shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and in case at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor to the Warrant Agent; and in all
such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
19
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
SECTION 19. WARRANT AGENT. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company. The Warrant
Agent assumes no responsibility for the correctness of any of the same
except such as describe the Warrant Agent or action taken or to be taken by
it. The Warrant Agent assumes no responsibility with respect to the
distribution of the Warrant Certificates except as herein otherwise
provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant Certificate in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the opinion
or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant Certificate for any action
taken in reliance on any Warrant Certificate, certificate of shares of
Common Stock, notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties. The
Warrant Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or revision of this Agreement or any of the terms
hereof, unless evidenced by a writing between the Company and the Warrant
Agent.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement and the performance of its responsibilities
hereunder, to reimburse the Warrant Agent for all expenses, taxes
(including withholding taxes) and governmental charges and other charges of
any kind and nature incurred by the Warrant Agent in the execution,
delivery and performance of its responsibilities under this Agreement and
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done
or omitted by the Warrant Agent in the execution, delivery and performance
of its responsibilities under this Agreement except as a result of its
gross negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company
20
or one or more registered holders of Warrant Certificates shall furnish the
Warrant Agent with reasonable security and indemnity for any costs and
expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as it may consider proper,
whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by
the Warrant Agent without the possession of any of the Warrant Certificates
or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent and any recovery of
judgment shall be for the ratable benefit of the registered holders of the
Warrants, as their respective rights or interests may appear.
(g) Except as prohibited by law, the Warrant Agent, and any
stockholder, director, officer or employee of the Warrant Agent, may buy,
sell or deal in any of the Warrants or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do
or refrain from doing in connection with this Agreement except for its own
gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to
be made any adjustment of the Exercise Price or number of the Warrant
Shares or other securities or property deliverable as provided in this
Agreement, or to determine whether any facts exist which may require any of
such adjustments, or with respect to the nature or extent of any such
adjustments, when made, or with respect to the method employed in making
the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Warrant Shares or of any
securities or property which may at any time be issued or delivered upon
the exercise of any Warrant or with respect to whether any such Warrant
Shares or other securities will when issued be validly issued and fully
paid and nonassessable, and makes no representation with respect thereto.
(j) In the absence of bad faith on its part, the Warrant Agent
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Warrant Agent and conforming to the requirements
of this Warrant Agreement. However, the Warrant Agent shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Agreement.
(k) The Warrant Agent may rely and shall be fully protected in
relying upon any document believed by it to be genuine and to have been
signed or presented by the proper person.
SECTION 20. REGISTRATION RIGHTS.
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The Company has prepared and caused to be filed with the SEC pursuant
to Rule 415 under the Securities Act a shelf registration statement, No.
333-18027, (the "Shelf Registration"), on Form S-3 under the Securities Act.
The Company hereby represents, warrants and covenants that (i) the Shelf
Registration has been declared effective by the SEC, (ii) the Shelf Registration
is currently effective, and (iii) the Company will file within 30 days of the
date of this Warrant Agreement an appropriate prospectus supplement or amendment
to the Shelf Registration covering the offer and sale by the Company of the
Warrant Shares to the holders of Warrants upon exercise thereof. The Company
also hereby covenants that:
(a) The Company shall use its best efforts to keep the Shelf
Registration continuously effective under the Securities Act in order to permit
the prospectus included therein to be lawfully delivered by the Company to the
holders exercising the Warrants until 30 days after the Expiration Date or such
shorter period that will terminate when all the Warrants have been exercised.
In the event that during such period the Shelf Registration shall no longer be
effective, in order to permit the prospectus included therein to be lawfully
delivered as set forth above, the Company shall (i) take whatever action is
necessary to cause the Shelf Registration to become so effective within 30 days
or (ii) file a registration statement under the Securities Act on an appropriate
form within such 30-day period covering the offer and sale of the Warrant Shares
to the holders of Warrants upon exercise thereof and cause such registration
statement (a "Subsequent Registration") to be declared effective by the SEC as
soon as practicable thereafter. If the Company files a Subsequent Registration
as contemplated by clause (ii) above, all of the Company's obligations under
this Section 20 shall apply to the Subsequent Registration.
(b) Except as provided below with respect to any Black Out Period (as
defined below), the Company shall be deemed not to have used its best efforts to
keep the Shelf Registration effective during the requisite period if it
voluntarily takes any action that would result in its not being able to offer
and sell the Warrant Shares upon exercise of the Warrants during that period,
unless such action is required by applicable law. Notwithstanding the
foregoing, the Company shall not be required to amend or supplement the Shelf
Registration, any related prospectus or any document incorporated therein by
reference, for a period (a "BLACK OUT PERIOD") not to exceed, for so long as
this Agreement is in effect, an aggregate of 60 days in any calendar year, in
the event that (i) an event occurs and is continuing as a result of which the
Shelf Registration, any related prospectus or any document incorporated therein
by reference as then amended or supplemented would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (ii)(A) the
Company determines in its good faith judgment that the disclosure of such event
at such time would have a material adverse effect on the business, operations or
prospects of the Company or (B) the disclosure otherwise relates to a material
business transaction which has not yet been publicly disclosed; PROVIDED that no
Black Out Period may be in effect during the six months prior to the Expiration
Date.
(c) The Company shall cause the Shelf Registration and the related
prospectus and any amendment or supplement thereto, as of the date hereof and as
of the effective date of any such amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the SEC and (ii) not to contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Company shall give prompt written notice to the holders of
the Warrants and the Warrant Agent of (1) the effectiveness of any
post-effective amendment to the Shelf Registration
22
thereto, (2) the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration or the initiation or threatening of
any proceedings for that purpose, (3) the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (4) the
happening of any event that requires the Company to make changes in the Shelf
Registration or the prospectus in order to make the statements therein not
misleading and (5) the commencement and termination of any Black Out Period.
(e) The Company shall use its reasonable best efforts to prevent
the issuance or obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration at the earliest possible time.
(f) Upon the occurrence of any event contemplated by Section
20(d)(4) or (5) of this Agreement (subject to Section 20(b) of this
Agreement) the Company shall promptly prepare a post-effective amendment to
the Shelf Registration or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to holders of the
Warrants, the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and will contain the current information required by the
Securities Act.
(g) Not later than the date hereof, the Company will provide a
CUSIP number for the Warrant Shares and provide the Warrant Agent with
printed certificates for the Warrant Shares.
(h) The Company will comply with all rules and regulations of the
SEC to the extent and so long as they are applicable to the Shelf
Registration.
(i) The Company shall register or qualify or cooperate with the
holders in connection with the registration or qualification of the Warrant
Shares for offer and sale by the Company upon exercise of the Warrants under
the securities or blue sky laws of such states of the United States as any
holder reasonably requests and do any and all other acts or things necessary
or advisable to enable such offer and sale in such jurisdictions; PROVIDED
that the Company shall not be required to (i) qualify to do business in any
jurisdiction in which it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction in which it is not then so subject.
(j) The Company shall bear all expenses incurred by it in connection
with the performance of its obligations under this Section 20.
(k) The Company acknowledges and agrees that any remedy at law for
breach of any provision of this Section 20 will be inadequate and that, in
addition to any other remedies that the holder may have, the holders shall be
entitled to the remedy of specific performance to ensure the Company performs
its obligations under this Section 20. The election of any one or more remedies
by the holders hereunder shall not constitute a waiver of the right to pursue
other available remedies.
SECTION 21. CHANGE OF WARRANT AGENT. If the Warrant Agent shall
become incapable of acting as Warrant Agent or shall resign as provided below,
the Company shall appoint a successor to such Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of such incapacity by the Warrant Agent or by the registered
holders of a majority of Warrants, then the registered holder of any Warrant
Certificate may apply to any court of
23
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to such Warrant Agent, either by the Company
or by such a court, the duties of the Warrant Agent after the effective date of
its resignation or after the date it becomes incapable of acting as Warrant
Agent shall be carried out by the Company. The holders of a majority of the
unexercised Warrants shall be entitled at any time to remove the Warrant Agent
and appoint a successor to such Warrant Agent. Such successor to the Warrant
Agent need not be approved by the Company or the former Warrant Agent. After
appointment, the successor to the Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Warrant Agent without further act or deed; but the former Warrant Agent
shall, conditioned upon receiving a receipt therefor and a release from the
Company of its obligations hereunder, deliver and transfer to the successor to
the Warrant Agent any property at the time held by it hereunder and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this Section 21, however,
or any defect therein, shall not affect the legality or validity of the
appointment of a successor to the Warrant Agent.
The Warrant Agent may resign at any time and be discharged from the
obligations hereby created by so notifying the Company in writing at least 30
days in advance of the proposed effective date of its resignation. If no
successor Warrant Agent accepts the engagement hereunder by such time, the
Company shall act as Warrant Agent and, at such time, the former Warrant Agent
shall, conditioned upon receiving a receipt therefor and a release from the
Company of its obligations hereunder, deliver and transfer to the Company any
property at the time held by it hereunder and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
SECTION 22. NOTICES TO THE COMPANY AND WARRANT AGENT. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made when and if deposited in the mail, registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Olympic Financial Ltd.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
and
Telecopier No.: (000) 000-0000
Attention: Secretary
with a copy to:
Xxxxxx & Xxxxxxx
Xxxxxxxxx Center South
000 Xxxxx Xxxxx Xxxxxx
Telecopier No. : (000) 000-0000
Attention: Xxxx Xxxxxxx
24
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder(s) of any Warrant Certificate to the Warrant Agent shall
be sufficiently given when and if deposited in the mail, registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) to the Warrant Agent at the Warrant Agent Office as
follows:
Norwest Bank Minnesota, National Association
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust
Notice may also be given by facsimile transmission (effective when
receipt is acknowledged) or by overnight delivery service (effective the next
business day).
SECTION 23. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
consent of any holders of Warrant Certificates in order to cure any ambiguity or
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which shall not in any way
materially adversely affect the interests of the holders of Warrant
Certificates. Any amendment or supplement to this Agreement that has a material
adverse effect on the interests of holders of the Warrants shall require the
written consent of registered holders of a majority of the then outstanding
Warrants (excluding Warrants held by the Company or any of its Affiliates). The
consent of each holder of a Warrant affected shall be required for any amendment
pursuant to which the Exercise Price would be increased or the number of Warrant
Shares purchasable upon exercise of Warrants would be decreased (other than in
accordance with Section 14, 15 or 16 hereof).
SECTION 24. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder,
including, without limitation, any Successor Guarantor under Section 14(m) of
this Agreement.
SECTION 25. TERMINATION. This Agreement shall terminate at 5:00
p.m., New York, New York time on March 15, 2007. Notwithstanding the foregoing,
this Agreement will terminate on such earlier date on which all outstanding
Warrants have been exercised. The provisions of Section 19 shall survive such
termination.
SECTION 26. GOVERNING LAW; JURISDICTION. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the internal laws of said State. The parties
hereto irrevocably consent to the jurisdiction of the courts of the State of New
York and any federal court located in such state in connection with any action,
suit or proceeding arising out of or relating to this Agreement.
SECTION 27. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement; but this
25
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 28. 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 29. FURTHER ASSURANCES. From time to time on and after the
date hereof, the Company shall deliver or cause to be delivered to the Warrant
Agent such further documents and instruments and shall do and cause to be done
such further acts as the Warrant Agent shall reasonably request (it being
understood that the Warrant Agent shall have no obligation to make such request)
to carry out more effectively the provisions and purposes of this Agreement, to
evidence compliance herewith or to assure itself that it is protected hereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
OLYMPIC FINANCIAL LTD.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By: Xxxxxx X. Xxxxxxxxx
Authorized Signatory
