UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
MERCURY FINANCE COMPANY
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(NAME TO BE CHANGED TO MFN FINANCIAL CORPORATION UPON THE
EFFECTIVE DATE OF MERCURY FINANCE COMPANY'S PLAN OF
REORGANIZATION (AS DEFINED HEREIN))
(Exact name of registrant as specified in its charter)
Delaware 36-3627010
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(State of incorporation or organization) I.R.S. Employer Identification No.)
100 Field Drive, 60045
Suite 340 (Zip Code)
Lake Forest, Illinois
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(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so Name of each exchange on which each
registered class is to be registered
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Not Applicable Not Applicable
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective upon filing
pursuant to General Instruction A(c) please check the following box.
[ ]
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A(d) please check the following box. [X]
Securities Act registration statement file number to which this form
relates: ____________________________________________________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value per share
Series A Warrants to Purchase Common Stock
Series B Warrants to Purchase Common Stock
Series C Warrants to Purchase Common Stock
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
On July 15, 1998, Mercury Finance Company, a Delaware corporation (the
"Company"), filed a voluntary petition for relief under chapter 11 of the United
States Bankruptcy Code (the "Bankruptcy Code") in the United States Bankruptcy
Court for the Northern District of Illinois Eastern Division (the "Bankruptcy
Court"). As part of the Second Amended Plan of Reorganization of the Company
dated December 29, 1998 (the "Plan of Reorganization"), the Company will issue
shares of common stock, $.01 par value per share, of the Company (the "New
Common Stock") and three series of warrants to purchase shares of New Common
Stock (the "Warrants"). The New Common Stock and the Warrants will be issued in
part to discharge claims of existing creditors and claimants against the
Company.
On the effective date of the Plan of Reorganization (the "Effective
Date"), the Company will file with the Delaware Secretary of State a Restated
Certificate of Incorporation substantially in the form of Exhibit 1.1 to this
Registration Statement on Form 8-A (the "Certificate of Incorporation"), under
which the authorized capital stock of the Company will consist of 60,000,000
shares of capital stock consisting of (1) 50,000,000 shares of New Common Stock;
and (2) 10,000,000 shares of Preferred Stock (the "Preferred Stock"). Pursuant
to the Plan of Reorganization, on the Effective Date, the Company will issue to
holders of certain claims against the Company, a total of 10,000,000 shares of
New Common Stock, and Warrants to purchase an aggregate of 1,740,000 shares of
New Common Stock. No Preferred Stock will be issued on the Effective Date. This
Registration Statement on Form 8-A pertains only to the New Common Stock and the
Warrants.
The following description of the capital stock of the Company and
certain provisions of the Company's Restated Certificate of Incorporation of the
Company and By-Laws is a summary and is qualified in its entirety by the
Restated Certificate of Incorporation of the Company and Amended By-Laws of the
Company, which have been filed as Exhibits to this Registration Statement on
Form 8-A.
NEW COMMON STOCK
The issued and outstanding shares of New Common Stock will upon
issuance pursuant to the Plan of Reorganization be validly issued, fully paid
and nonassessable. Subject to the right of holders of Preferred Stock, the
holders of outstanding shares of New Common Stock will be entitled to receive
dividends out of assets legally available therefor at such times and in such
amounts as the Board of Directors may from time to time determine. The shares of
New Common Stock are neither redeemable nor convertible, and the holders thereof
will have no preemptive or subscription rights to purchase any securities of the
Company. Upon liquidation, dissolution or winding up of the Company, the holders
of New Common Stock will be entitled to receive, pro rata, the assets of the
Company which are legally available for distribution, after payment of all debts
and other liabilities and subject to the prior rights of any holders of
Preferred Stock then outstanding. Each outstanding share of New Common Stock
will be entitled to one vote on all matters submitted to a vote of stockholders.
There will be no cumulative voting in the election of directors.
The Plan of Reorganization requires that the Company use its reasonable
best efforts to cause the New Common Stock to be listed on a national securities
exchange or the Nasdaq National Market System. The Company has made application
for inclusion of the New Common Stock on the Nasdaq National Market System.
PREFERRED STOCK
The Company's Restated Certificate of Incorporation authorizes the
Board of Directors to issue the Preferred Stock in one or more series and to
establish the designations, preferences, qualifications, limitations or
restrictions of any class or series with respect to the rate and nature of
dividends, the price and terms and conditions on which shares may be redeemed,
the terms and conditions for conversion or exchange into any other class or
series of the stock, voting rights and other terms. The Company may issue,
without approval of the holders of New Common Stock, Preferred Stock which has
voting, dividend or liquidation rights superior to the Common Stock and which
may adversely affect the rights of holders of New Common Stock. The issuance of
Preferred Stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other things, adversely
affect the voting power of the holders of New Common Stock and could have the
effect of delaying, deferring or preventing a change in control of the Company.
The Company has no present plans to issue any shares of Preferred Stock. In
addition, the Restated Certificate of Incorporation states that the Company may
not issue nonvoting equity securities.
CERTAIN STATUTORY PROVISIONS
In its Restated Certificate of Incorporation, the Company has elected
not to be governed by Section 203 of the Delaware General Corporation Law
("Section 203"). Section 203 prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the time of the transaction in which the person
became an interested stockholder, unless (i) prior to such time of the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder, the transaction is approved by the board of directors of
the corporation, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock, or (iii) at or subsequent to such
time, the business combination is approved by the board of directors and by the
affirmative vote of at least 66-2/3% of the outstanding voting stock that is not
owned by the interested stockholder. For purposes of Section 203, a "business
combination" includes a merger, asset sale or other transaction resulting in a
financial benefit to the interested stockholder, and an "interested stockholder"
is a person who, together with affiliates and associates, owns (or within three
years, did own) 15% or more of the corporation's voting stock.
WARRANTS
Warrants will be issued to certain claimants of the Company. The
Warrants will be issued under the Warrant Agreement (the "Warrant Agreement")
dated as of the Effective Date between the Company and Harris Trust and Savings
Bank, as warrant agent (the "Warrant Agent"). A copy of the Warrant Agreement is
attached hereto as Exhibit 1.4.
Three series of Warrants (the "Series A Warrants", the "Series B
Warrants" and "Series C Warrants") will be issued pursuant to the Warrant
Agreement. Each series of Warrants has identical terms except that each series
will have a different exercise price and Warrant Exercise Period (as defined
below). The following summary of the Warrants does not purport to be complete
and is qualified in its entirety by reference to the Warrant Agreement.
Each of the three series of Warrants will represent the right to
purchase an aggregate of 580,000 shares of the New Common Stock, which are
subject to dilution. The exercise price of the Series A Warrants will be $15.34,
the exercise price of the Series B Warrants will be $21.81 and the exercise
price for the Series C Warrants will be $28.27. The exercise period for each
series of the Warrants shall begin at 9:00 a.m., central standard time, on the
Effective Date, and shall expire at 5:00 p.m., central standard time, on the
date which is three, four and five years from the Effective Date for the Series
A Warrants, the Series B Warrants and the Series C Warrants, respectively (the
"Warrant Exercise Period"). Each Warrant not exercised prior to the expiration
of the applicable Warrant Exercise Period will become void, and all rights
thereunder will terminate.
Pursuant to the Plan of Reorganization, the Company has agreed to use
its reasonable best efforts to have each series of the Warrants listed for
trading or on the Nasdaq National Market. Listing criteria of the Nasdaq
National Market will not be satisfied and it is unlikely that such listing will
initially be authorized. In addition, the Warrant Agreement requires the Company
to use commercially reasonable efforts to quote and to maintain the quotation of
each series of the Warrants on the Nasdaq National Market, and requires the
Company to use such efforts to cause each series of the Warrants to be quoted on
alternative exchanges or to include them in an alternative quotation system if
quotation on the Nasdaq National Market is not (or is no longer) available.
The number and kind of securities purchasable upon the exercise of the
Warrants and the exercise price therefor will be subject to adjustment upon the
occurrence of certain events as set forth in the Warrant Agreement, including,
without limitation, the issuance of capital stock as a dividend or distribution
on the Common Stock; subdivisions, reclassifications and combinations of the New
Common Stock; the distribution to holders of New Common Stock of indebtedness or
assets of the Company or any entity controlled by the Company (excluding cash
dividends or cash distributions from consolidated earnings or surplus legally
available for such dividends or distributions) or shares of capital stock of any
entity controlled by the Company; the issuance of shares of New Common Stock, or
other securities convertible into or exchangeable or exercisable for shares of
New Common Stock, for a consideration that is less than the then-current market
price of the New Common Stock. The Warrants are subject to dilution, along with
the New Common Stock.
No adjustment in such shares or exercise price will be required in
connection with the issuance of New Common Stock, rights, warrants or other
securities pursuant to: any plan adopted by the Company or any entity controlled
by the Company for the benefit of its employees or directors; any underwritten
public offering satisfying specified criteria; a plan adopted by the Company for
the reinvestment of dividends or interest, provided that the issuance of such
shares is not at a discount of more than 20% to the then current market price;
the issuance of shares or New Common Stock to shareholders of any corporation
which is acquired by, merged into or made a part or subsidiary of, the Company
in an arm's length transaction; or, a change in the par value of the New Common
Stock. In addition, no adjustment will be required, (a) if in connection with
any of the events otherwise giving rise to an adjustment the holders of the
Warrants receive such rights, securities or assets as such holders would have
been entitled had the Warrants been exercised immediately prior to such event;
or (b) unless such adjustment would require at least a 1% change in the
aggregate number of shares of New Common Stock issuable upon the hypothetical
exercise of a Warrant (but any adjustment requiring a change of less than 1%
will be carried forward and taken into any subsequent adjustment).
The Company may at its option, at any time during the term of each
Warrant, reduce the then current exercise price of such Warrant and/or increase
the number of shares of New Common Stock issuable upon the exercise of such
Warrant to any amount deemed appropriate by the Board of Directors of the
Company. The Company and the Warrant Agent may from time to time supplement or
amend the Warrant Agreement without approval of any holder to cure, among other
things, any ambiguity or to correct or supplement any provision, or to comply
with the requirements of the Nasdaq National Market or any national securities
exchange, if applicable. Any other supplement or amendment to the Warrant
Agreement will require the approval of the holders of a majority of the
outstanding New Warrants of each series, with the series voting separately as
three classes. Notwithstanding the foregoing, any amendment or supplement which
(i) increases the exercise price; (ii) decreases the number of shares of New
Common Stock issuable upon exercise of a Warrant; or (iii) shortens the period
during which the Warrants may be exercised, requires the consent of the holder
of the Warrant affected thereby.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the New Common Stock and the
Warrants will be Harris Trust and Savings Bank, Chicago, Illinois.
ITEM 2. EXHIBITS.
Exhibit
Number Description
1.1 Form of the Restated Certificate of Incorporation of Mercury Finance
Company, to be filed with the Secretary of State of the State of
Delaware and to become effective as of the Effective Date of the Plan
of Reorganization.
1.2 Form of the Restated By-laws of Mercury Finance Company to become
effective as of the Effective Date.
1.3 Second Amended Plan of Reorganization of Mercury Finance Company, Inc.,
filed under Chapter 11 of the Bankruptcy Code and dated December 30,
1998 (incorporated herein by reference to the Company's Form T-3, as
amended, (SEC No. 22-22403).
1.4 Form of Warrant Agreement between Mercury Finance Company and Harris
Trust and Savings Bank, as warrant agent (to be dated as of the
Effective Date of the Plan of Reorganization).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this registration
statement on Form 8-A to be signed on its behalf by the undersigned, thereto
duly authorized.
MERCURY FINANCE COMPANY
By: /s/ Patrick J. O'Malley
Name: Patrick J. O'Malley
Title: Chief Accounting Officer
Date: March 18, 1999
RESTATED CERTIFICATE OF INCORPORATION
OF
MERCURY FINANCE COMPANY
The corporation originally incorporated in the State of Delaware under
the name of Mercury Finance Company on November 22, 1988. This Restated
Certificate of Incorporation was duly adopted in accordance with the applicable
provisions of Sections 242 and 245 of the General Corporation Law of Delaware
and shall become effective upon filing with the Secretary of State of the State
of Delaware. This Restated Certificate of Incorporation is made and filed
pursuant to the order of the United States Bankruptcy Court for the Northern
District of Illinois, pursuant to the Second Amended Plan of Reorganization
dated December 29, 1998 of Mercury Finance Company, in connection with the
reorganization of Mercury Finance Company under Title 11 of the United States
Code, and in accordance with Sections 103 and 303 of the General Corporation Law
of the State of Delaware.
ARTICLE ONE
The name of the corporation is MFN Financial Corporation (the
"Corporation").
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE THREE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE FOUR
A. AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation has
authority to issue is 60,000,000 shares, consisting of:
1. 10,000,000 shares of Preferred Stock, par value, $.01 per
share ("Preferred Stock"); and
2. 50,000,000 shares of Common Stock, par value, $.01 per
share ("Common Stock").
The Preferred Stock and the Common Stock, respectively, shall have the rights
preferences and limitations set forth below. The Corporation shall not issue
nonvoting equity securities.
B. PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series, with such distinctive serial designations as may be stated or expressed
in the resolution or resolutions providing for the issue of such stock adopted
from time to time by the Board of Directors; and in such resolution or
resolutions providing for the issuance of shares of each particular series, the
Board of Directors is also expressly authorized to fix: the appropriate right to
vote (after a default or default in dividend payments or otherwise); the
consideration for which the shares of such series are to be issued; the number
of shares constituting such series, which number may be increased (except as
otherwise fixed by the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time by action of the
Board of Directors; the rate of dividends upon which and the times at which
dividends on shares of such series shall be payable, including a rate payable in
shares of Preferred Stock or any other class of Preferred Stock or other shares
of stock of the Corporation, and the preference, if any , which such dividends
shall have relative to dividends on shares of any other class or classes or any
other series of capital stock of the Corporation; whether such dividends shall
be cumulative or noncumulative, and if cumulative, the date or dates from which
dividends on shares of such series shall be cumulative; the rights, if any,
which the holder of shares of such series shall have in the event of any
voluntary or involuntary liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding up of the affairs of the Corporation; the
rights, if any, which the holders of shares of such series shall have to convert
such shares into or exchange such shares for shares of any other class or
classes or any other series of capital stock of the Corporation or for any debt
securities of the Corporation and the terms and conditions, including price and
rate of exchange, of such conversion or exchange; whether shares of such series
shall be subject to redemption, and the redemption price or prices and other
terms of redemption, if any for shares of such series including, without
limitation, a redemption price or prices payable in shares of Common Stock; the
terms and amounts of any sinking fund for the purchase or redemption of shares
of such series; and any and all other powers, preferences and relative,
participating, optional or other special rights and limitations or restrictions
thereof pertaining to shares of such series permitted by law.
C. COMMON STOCK
1. General.
All authorized shares of Common Stock shall be available for issuance
and may be issued in accordance with the provisions of this Amended and Restated
Certificate of Incorporation, as from time to time amended, and applicable
statutes.
2. Identical Rights
All shares of common stock will be identical and will entitle the
holders thereof to the same rights and privileges.
3. Voting Rights.
Except as otherwise provided by applicable statutes or this Amended and
Restated Certificate of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of stock held by him of record on the books of
the Corporation on all matters voted upon by the stockholders.
4. Dividends.
Subject to the rights of the holders of outstanding shares of Preferred
Stock, the holders of Common Stock shall be entitled to receive such dividends
as may be declared from time to time by the Board of Directors out of the funds
legally available therefor.
5. Liquidation, Dissolution or Winding Up.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after there shall have
been paid or set aside for the holders of all shares of Preferred Stock then
outstanding the full preferential amounts to which such holders are entitled
under the resolutions authorizing the issuance of such Preferred Stock (if any),
the net assets of the Corporation shall be divided ratably among the holders of
the Common Stock. The Board of Directors may distribute in kind to the holders
of Common Stock such remaining assets of the Corporation or may sell, transfer
or otherwise dispose of all or any part of such remaining assets to any other
corporation, trust or other entity and receive payment therefor in cash, stock
or obligations of such other corporation, trust or entity, or any combination
thereof, and may sell all or any part of the consideration so received and
distribute any balance thereof in kind to holders of Common Stock. The merger or
consolidation of the Corporation into or with any other corporation, or the
merger of any other corporation into it, or any purchase or redemption of shares
of stock of the Corporation of any class, shall not be deemed to be a
dissolution, liquidation or winding up of the Corporation for the purposes of
this paragraph.
6. No Preemptive Rights.
No holder of shares of the Common Stock of the Corporation shall have
preemptive rights or otherwise be entitled as a matter of right to purchase or
subscribe for any part of any stock of any class, or of any additional stock of
any class of capital stock of the Corporation, or of any bonds, certificates of
indebtedness, debentures, or other securities convertible into stock of the
Corporation, now or hereafter authorized.
7. Issuance of Stock.
Any Common Stock or other securities convertible into stock may be
issued and disposed of pursuant to resolution by the Board of Directors to such
persons, firms, corporations or associations and upon such terms and for such
consideration (not less than the par value or stated value thereof) as the Board
of Directors in the exercise of its discretion may determine and as may be
permitted by law without action by the stockholders. The Board of Directors may
provide for payment therefor to be received by the Corporation in cash, personal
property, real property (or leases thereof) or services. Any and all shares of
stock so issued for which the consideration so fixed has been paid or delivered,
shall be deemed fully paid and not liable to any further call or assessment.
8. Corporation May Acquire Stock
Subject to any applicable provision of this Article Four, the
Corporation may at any time or from time to time purchase or otherwise acquire
shares of its Common Stock in any manner now or hereafter permitted by law,
publicly or privately, or pursuant to any agreement.
ARTICLE FIVE
1. General.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The number of directors shall be
fixed by, or in the manner provided in, the By-laws. Elections of the directors
need not be by written ballot unless the By-laws so provide.
2. Removal.
Directors may be removed, with or without cause, by a vote of the
holders of a majority of the shares of Common Stock then outstanding and
entitled to vote.
3. Amendment of By-laws.
Subject to the power of the stockholders under applicable statutes to
make, alter or repeal the By-laws of the Corporation, the Board of Directors
shall have the right to make, alter or repeal the By-laws of the Corporation.
4. Meetings of Stockholders.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the Corporation may provide.
5. Books of Corporation.
The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide or
as may be designated from time to time by the Board of Directors of the
Corporation.
ARTICLE SIX
The Corporation shall, to the full extent permitted by Section 145 of
the Delaware General Cooperation Law, as amended from time to time, indemnify
and advance expenses to all officers and directors of the Corporation, and may
indemnify others to the extent permitted by Section 145 of the Delaware General
Corporation Law.
ARTICLE SEVEN
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by a vote sufficient for
such purpose without counting the vote of the interested director or
directors;
(b) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE EIGHT
No director of the Corporation or any of its subsidiaries shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware (or the corresponding provision of any
successor act or law), or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General Corporation Law
is amended subsequent to the date of the filing of this Amended And Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware in any manner which further eliminates or limits the personal liability
of directors, then, without further action by the Board of Directors or the
stockholders of the Corporation, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent then permitted by the
Delaware General Corporation Law, as so amended. For purposes of this Article,
"fiduciary duty as a director" shall include any fiduciary duty arising out of
serving at the request of the corporation as a director of another corporation,
partnership, joint venture, trust or other enterprise, and "personally liable to
the corporation" shall include any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any liability to the
Corporation in its capacity as security holder, joint venture, partner,
beneficiary, creditor or investor of or in any such other corporation,
partnership, joint venture, trust or other enterprise. Any repeal or
modification of this Article by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification
with respect to acts or omissions occurring prior to such repeal or
modification.
ARTICLE NINE
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the laws of Delaware, and all rights conferred herein
upon stockholders and directors are granted subject to this reservation.
ARTICLE TEN
The Corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this
certificate to be signed by _________________, its ________________ and attested
by __________, its Secretary, this __ day of _________, 1999.
MERCURY FINANCE COMPANY
By:___________________________
Name:
Title:
ATTEST:
By:____________________________
Name:
Title:
MFN FINANCIAL CORPORATION
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors shall
be held at such place (within or without the State of Delaware) as may be fixed
from time to time by the board of directors and stated in the notice of the
meeting. Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Commencing in 2000, annual meetings of stockholders shall be held on
the fourth Wednesday of April (if not a legal holiday and if a legal holiday,
then on the next secular day following), at 4:00 P.M., or at such other date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. At each annual meeting, the shareholders
shall elect, by a plurality vote, a board of directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Written notice of the meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The original or duplicate stock ledger shall be the only evidence as to
who are the stockholders entitled to examine such list, the stock ledger or the
books of the corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 5. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
may be called by the chairman or the chief executive officer of the corporation
and shall be called by either such person at the request in writing of a
majority of the board of directors, or at the request in writing of stockholders
owning in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting of the stockholders stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
Section 7. An affidavit of the secretary or an assistant secretary or the
transfer agent of the corporation that notice of a stockholders meeting has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
Section 8. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 9. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy or the Chairman or the Chief Executive
Officer, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at a meeting.
Section 10. When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the statutes of the State of Delaware
or the certificate of incorporation, a different vote is required, in which
case, such express provision shall govern and control the decision of such
question.
Section 11. Unless otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after one (1) year from
its date, unless the proxy provides for a longer period. Persons holding stock
in fiduciary capacity shall be entitled to vote the shares so held. Shares of
capital stock owned by the corporation shall not be voted, directly or
indirectly.
Section 12. If shares or other securities having voting power stand of record in
the names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the secretary of the corporation is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect;
(a) If only one votes, his acts binds all;
(b) If more than one vote, the act of the majority so voting
binds all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a
majority of such persons and the person appointed by the Court. If the
instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even split for the purpose of this subsection
shall be a majority or even split in interest.
Section 13. Unless otherwise provided in the certificate of incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board shall
be not less than five nor more than fifteen. Within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors, but absent such resolution, shall be seven. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filed by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are not directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or newly created directorship, the directors then in office
shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by its board of
directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 4. Any director, member of a committee or other officer may resign at
any time. Such resignation shall be made in writing, and shall take effect at
the time specified therein, and if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall not
be necessary to make it effective.
Section 5. A member of the board of directors or a member of any committee
designated by the board of directors shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports
made to the corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the board
of directors or by any committee, or in relying in good faith upon other records
of the corporation.
MEETINGS OF THE
BOARD OF DIRECTORS
Section 6. Except as hereinafter provided, any director or directors may be
removed either with or without cause at any time by the affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote at a special meeting of the stockholders called for the purpose and the
vacancies thus created may be filled, at the meeting held for the purpose of
removal, by the affirmative vote of a majority in interest of the stockholders
entitled to vote at such meeting.
Section 7. The board of directors of the corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Section 8. The annual meeting of the board of directors shall be held
immediately following the annual meeting of stockholders at the place thereof,
or at such other time and place as then may be determined by the chairman, for
the purpose of appointing directors to committees of the board and electing the
officers of the corporation for the ensuing year.
Section 9. Regular meetings of the board of directors may be held without notice
at such time and at such place as shall from time to time be determined by the
board.
Section 10. Special meetings of the board of directors or committees thereof may
be called by the chairman or the chief executive officer on two days' notice to
each director, either personally or by mail, facsimile or other written form;
special meetings shall be called by the chairman or secretary in like manner and
on like notice on the written request of a majority of the directors.
Section 11. At all meetings of the board of directors a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. Common
or interested directors may be counted in determining the presence of a quorum
at a meeting of the board of directors. If a quorum shall not be present at any
meeting of the board of directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 12. Unless otherwise restricted by the certificate of incorporation or
these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or any committee thereof may be taken without a meeting,
if all members of the board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board of directors or committee.
Section 13. During any emergency period following a catastrophe or other
emergency contemplated by Section 110 of the General Corporation Laws of the
State of Delaware as a result of which a quorum of the board of directors or a
standing committee thereof cannot readily be convened for action, a majority of
the directors who can readily convene shall constitute a quorum, for the purpose
of filling vacancies in the board of directors and among the elected and
appointed officers of the corporation.
Section 14. Unless otherwise restricted by the certificate of incorporation or
these by-laws, members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board of directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEE OF DIRECTORS
Section 15. The board of directors shall have standing executive, audit,
personnel and compensation, and nominating committees, and may, by resolution or
resolutions passed by a majority of the whole board, designate additional
committees which shall bear such name and have the powers and duties as may be
fixed and determined by the board of directors. The size and membership of each
standing or other committee shall be determined by the board of directors from
time to time. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors at the next meeting of the board of
directors.
Section 16. The executive committee shall include and shall be chaired by the
chairman of the board of directors. During the interval between the meetings of
the board of directors, in cases where the board of directors cannot readily be
convened, the executive committee shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution, amending the by-laws of the corporation, declaring a dividend, or
authorizing the issuance of stock.
Section 17. The audit committee shall review the audit schedule and results of
audits performed by internal auditors, meet with and review results of auditors
of the corporation and its subsidiaries performed by independent public auditors
and recommend the selection of independent public auditors. Directors who are
also employees of the corporation shall not be voting members of this committee.
Section 18. The personnel and compensation committee shall recommend to the
board of directors salaries and bonuses of all executive officers, oversee the
corporation's compensation, incentive, and employee benefit programs, and
administer the corporation's retirement, incentive compensation and stock option
plans. The committee shall also review other personnel matters as may be
appropriate and make recommendations to the chief executive officer and the
board of directors. Directors who are also employees of the corporation shall
not be voting members of this committee.
Section 19. The nominating committee shall consider nominees to the board of
directors from names recommended by stockholders and shall nominate persons to
be elected to the board of directors at the annual meeting of stockholders or
when vacancies are to be filled. The committee shall also review and recommend
to the board of directors changes in compensation of directors.
COMPENSATION OF DIRECTORS
Section 20. By resolution of the board of directors, a non-employee director may
receive compensation for services as a director. Also, the board of directors
may allow a fixed sum and expenses of attendance, for attendance at each regular
or special meeting of the board of directors or a committee thereof. Nothing
herein shall be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile (at a telephone number provided by such
director for such purpose) or by recognized overnight delivery service.
Section 2. Whenever any notice is required to be given under the provisions of
the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, board of directors or members of
a committee of directors need be specified in any written waiver of notice.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a chairman of the board of directors, a president, a
vice-president, a secretary and a treasurer. The board of directors may also
choose additional vice presidents, one or more assistant secretaries, and one or
more assistant treasurers. The board of directors shall designate either the
chairman of the board of directors or the president to be the chief executive
officer of the corporation. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors may appoint such other officers and agents as
it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
Section 3. The salaries of all executive officers of the corporation shall be
fixed by the board of directors.
Section 4. The officers of the corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation and/or
removal. Any officer elected or appointed by the board of directors may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors. Any officer may resign at
any time by giving written notice to the board of directors, the chairman of the
board, the president or the secretary. Such resignation shall take effect at the
time specified therein; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
THE CHAIRMAN OF THE
BOARD OF DIRECTORS
Section 5. The chairman of the board of directors shall preside at all meetings
of the stockholders and directors. If he is not designated chief executive
officer, he shall, in the absence or disability of such officer, act in his
place and stead, and he shall have such additional powers and duties as may be
assigned by the chief executive officer or the board of directors.
THE PRESIDENT
Section 6. The president, if he is not designated chief executive officer,
shall, in the absence or disability of such officer, act in his place and stead,
and he shall have such other powers and duties as may be assigned by the chief
executive officer or the board of directors.
THE CHIEF
EXECUTIVE OFFICER
Section 7. The chief executive officer (i.e., the chairman of the board of
directors or the president, as designated by the board of directors) shall have
general and active management and control of the business and affairs of the
corporation subject to the control of the board of directors, and shall see that
all orders and resolutions of the board are carried into effect.
THE VICE PRESIDENT
Section 8. In the absence of the chairman and the president, or in the event of
their inability or refusal to act, the vice president (or in the event there be
more than one vice president, the vice president in the order designated or in
the absence of any designation, then in the order of their election) shall
perform the duties of the chairman and president, and when so acting, shall have
all of the powers of and be subject to all the restrictions upon the chairman
and the president. The vice president shall perform such other duties and have
such other powers and duties as may be assigned by the chief executive officer
or the board of directors.
THE SECRETARY
AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of directors and
all meetings of the stockholders and record all the proceedings of the meetings
of the stockholders and record all of the meetings of the corporation and of the
board of directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give or cause to be
given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be assigned by
the chief executive officer or the board of directors. He shall have custody of
the stock ledger (which may, however, be kept by any transfer agent or agents or
the corporation under his direction) and the corporate seal of the corporation
and he, or any assistant secretary, shall have the authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the assistant
secretaries in order determined by the board of directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as may be assigned by the chief executive
officer or the board of directors.
THE TREASURER
AND ASSISTANT TREASURER
Section 11. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all money
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the chief executive officer and the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the corporation
a bond in such sum and with such surety or sureties as shall be satisfactory to
the board of directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 14. The assistant treasurer, or if there shall be more than one, the
assistant treasurer in the order determined by the board of directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers and duties as may be assigned by the
chief executive officer or the board of directors.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. The board of directors may, at any time and from time to time, if all
of the shares of capital stock which the corporation is authorized by its
certificate of incorporation to issue have not been issued, subscribed for, or
otherwise committed to be issued, issue or take subscriptions for additional
shares of its capital stock up to the amount authorized in its certificate of
incorporation. Such stock shall be issued and the consideration paid therefor in
the manner prescribed by law. Shares of stock with par value may be issued for
such consideration, having a value not less than par value thereof.
Section 2. Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the chairman or
the president or a vice president, and the treasurer or an assistant treasurer
or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation; provided that the board of
directors may provide by one or more resolutions that some or all of any or all
classes or series of the corporation's stock shall be uncertificated shares.
Certificates may be issued for partly paid shares and in such case upon the face
or back of the certificates issued to represent any such partly paid shares, the
total amount of the consideration to be paid therefor, and the amount paid
thereon, shall be specified.
Section 3. The corporation shall have authority to appoint a transfer agent and
a registrar upon proper resolution of the board of directors.
Section 4. Any of or all the signatures of the corporation's officers on the
certificate may be facsimile if a transfer agent or registrar has been appointed
and the authorized signature of such transfer agent or registrar is manually
signed, otherwise at least one corporate officer's signature shall be manually
signed. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 5. The board of directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen, or destroyed upon the making
of an affidavit of that by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or give the corporation a bond
in such sum or such indemnification as it may direct against any claim that may
be made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 6. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 7. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect to any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of a record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 8. If no record date is fixed by the board of directors:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board
of directors adopts the resolution relating thereto.
REGISTERED STOCKHOLDERS
Section 9. The corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section 2. Before a payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors may from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting and at
any special meeting of the stockholders, when called or by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the board
of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
Section 7. The corporation shall not be governed by the provisions of Section
203 of the General Corporation Law of the State of Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new by-laws may
be adopted by the board of directors at any regular meeting of the board of
directors or at any special meeting of the board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting; or, by the vote of a majority of the total
outstanding stock of the corporation, present in person or by proxy, at any
meeting of stockholders at which a quorum is present.
WARRANT AGREEMENT
between
MERCURY FINANCE COMPANY
and
HARRIS TRUST AND SAVINGS BANK
as Warrant Agent
--------------------------
Dated as of __________, 1999
TABLE OF CONTENTS
PAGE
Section 1. Definitions................................................ 1
Section 2. Form of Warrant; Execution; Registration....................3
2.1 Form of Warrant; Execution of Warrants......................3
2.2 Registration................................................3
2.3 Countersignature of Warrants................................3
Section 3. Transfer and Exchange of Warrants...........................4
Section 4. Term of Warrants; Exercise of Warrants; Compliance with
Government Regulation.......................................4
4.1 Term of Warrants............................................4
4.2 Exercise of Warrants........................................5
4.3 Compliance with Government Regulations; Qualification under
Securities Laws.............................................6
Section 5. Payment of Taxes............................................6
Section 6. Mutilated or Missing Warrant Certificates...................7
Section 7. Reservation of Warrant Shares...............................7
Section 8. Stock Exchange Listings.....................................7
Section 9. Adjustment of Exercise Price, Number of Warrant Shares and
Shares of Capital Stock Warrants Are Exercisable Into.......8
9.1 Mechanical Adjustments......................................8
(a) Adjustment for Change in Capital Stock.............8
(b) Adjustment for Rights Issue........................8
(c) Adjustment for Other Distributions.................9
(d) Adjustment for Common Stock and Convertible
Securities Issue...................................9
(e) Current Market Price; Price Per Share..............10
(f) When De Minimis Adjustment May Be Deferred.........12
(g) Adjustment in Exercise Price.......................12
(h) When No Adjustment Required........................12
(i) Capitalization, Reclassification or Consolidation..13
(j) Shares of Common Stock.............................13
(k) Expiration of Rights, etc..........................13
9.2 Voluntary Adjustment by the Company.........................14
9.3 Notice of Adjustment........................................14
9.4 Preservation of Purchase Rights upon Merger or
Consolidation...............................................15
9.5 Statement on Warrants.......................................15
Section 10. Fractional Interests........................................15
Section 11. No Rights as Stockholders; Notices to Holders...............15
Section 12. Payments in U.S. Currency...................................16
Section 13. Merger or Consolidation or Change of Name of Warrant Agent..16
Section 14. Appointment of Warrant Agent................................17
14.1 Concerning the Warrant Agent................................17
14.2 Correctness of Statements...................................17
14.3 Breach of Covenants.........................................17
14.4 Performance of Duties.......................................17
14.5 Reliance on Counsel.........................................17
14.6 Proof of Actions Taken......................................18
14.7 Compensation and Indemnification............................18
14.8 Legal Proceedings...........................................18
14.9 Other Transactions in Securities of Company.................18
14.10 Liability of Warrant Agent..................................19
14.11 Reliance on Documents.......................................19
14.12 Validity of Agreement.......................................19
14.13 Instructions from Company...................................19
Section 15. Change of Warrant Agent.....................................19
Section 16. Notices.....................................................20
Section 17. Cancellation of Warrants....................................20
Section 18. Supplements and Amendments..................................20
Section 19. Successors..................................................21
Section 20. Applicable Law..............................................21
Section 21. Benefits of this Agreement..................................21
Section 22. Counterparts................................................21
Section 23. Captions....................................................21
WARRANT AGREEMENT, dated as of __________, 1999, between Mercury
Finance Company, a Delaware corporation (the "Company"), and [Harris Trust and
Savings Bank], as Warrant Agent (together with any successors and assigns, the
"Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company was a Debtor and Debtor-in-Possession in the case
(the "Chapter 11 Case") filed in the United States Bankruptcy Court for the
District of ___________________ (the "Bankruptcy Court"), entitled "In re
Mercury Finance Company, Debtor," Chapter 11 Case No. ________, under the
Bankruptcy Code;
WHEREAS, in connection with and as part of the transactions to be
consummated pursuant to the confirmation of a Plan of Reorganization (as
amended, modified or supplemented from time to time) of the Company in the
Chapter 11 Case (the "Plan"), the Company has agreed to issue three series of
Warrants (the "Series A Warrants", the "Series B Warrants" and the "Series C
Warrants" and collectively, the "Warrants") with each series of Warrants
exercisable for the purchase of 580,000 shares of Common Stock of the Company.
WHEREAS, by Order dated __________ __, 1999, the Bankruptcy Court
confirmed the Plan;
WHEREAS, the Plan contemplates that the Company will enter into certain
agreements, including, without limitation, this Warrant Agreement;
WHEREAS, the Company desires to issue the Warrants, each of which
entitles the holder thereof to purchase one share of its Common Stock (each of
said shares of Common Stock deliverable upon exercise of the Warrants, a
"Warrant Share"); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act in connection with the
issuance, division, transfer, exchange and exercise of Warrants.
NOW, THEREFORE, in consideration of the foregoing, to implement the
terms of the Plan, and for the purpose of defining the terms and provisions of
the Warrants and the respective rights and obligations thereunder of the Company
and the registered owners of the Warrants (the "Holders") and any security into
which they may be exchanged, the Company and the Warrant Agent hereby agree as
follows:
Section 1. Definitions. The following terms, as used herein, have the
following meanings (all terms defined in the singular to have the correlative
meanings when used in the plural and vice versa):
"Agreement" means this Warrant Agreement, as the same may be amended,
modified or supplemented from time to time.
"Assets" has the meaning ascribed to such term in Section 9.1(c)
hereof.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) any
day on which banking institutions located in the City of New York, New York or
Chicago, Illinois are required or authorized by law or by local proclamation to
close, or (c) any day on which the New York Stock Exchange is closed.
"Commercially Reasonable Efforts", when used with respect to any
obligation to be performed or term or provision to be observed hereunder, means
such efforts as a prudent Person seeking the benefits of such performance or
action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder, or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the commencement,
termination or settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the relevant action.
"Common Stock" means the common stock, par value $___, of the Company
after the Effective Date (as defined in the Plan).
"Convertible Securities" has the meaning ascribed to such term in
Section 9.1(d) hereof.
"Exercise Period" has the meaning ascribed to such term in Section 4.1
hereof.
"Exercise Price" means (i) $15.34 per share for the Series A Warrants,
(ii) $21.81 per share for the Series B Warrants, and (iii) $28.27 per share for
the Series C Warrants, as adjusted pursuant to Section 9 hereof.
"Holder" has the meaning ascribed to such term in the preamble hereto.
"NASD" has the meaning ascribed to such term in Section 4.2 hereof.
"Person" means a natural person, a corporation, a partnership, a trust,
a joint venture, any regulatory authority or any other entity or organization.
"Plan" has the meaning ascribed to such term in the preamble hereto.
"Price Per Share" has the meaning ascribed to such term in Section
9.1(e)(ii) hereof.
"Rights" has the meaning ascribed to such term in Section 9.1(b)
hereof.
"Transfer Agent" has the meaning ascribed to such term in Section 7
hereof.
"SEC" means the United States Securities and Exchange Commission, or
any successor governmental agency or authority thereto.
"Series A Warrants" has the meaning ascribed to such term in the
preamble hereto.
"Series B Warrants" has the meaning ascribed to such term in the
preamble hereto.
"Series C Warrants" has the meaning ascribed to such term in the
preamble hereto.
"Subsidiary" has the meaning ascribed to such term in Section 9.1(c)
hereof.
"Warrant" has the meaning ascribed to such term in the preamble hereto.
"Warrant Certificate" has the meaning ascribed to such term in Section
2.1 hereof.
"Warrant Register" has the meaning ascribed to such term in Section 2.2
hereof.
"Warrant Share" has the meaning ascribed to such term in the preamble
hereto.
Section 2. Form of Warrant; Execution; Registration.
2.1 Form of Warrant; Execution of Warrants. The certificates evidencing
the Warrants (the "Warrant Certificates") shall be in registered form only and
shall be in the form set forth as Exhibit A hereto. The Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board,
President, Chief Executive Officer or one of its Vice Presidents. The signature
of any such officer on the Warrant Certificates may be manual or by facsimile.
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. Each Warrant
Certificate shall be dated the date it is countersigned by the Warrant Agent
pursuant to Section 2.3 hereof.
2.2 Registration. The Warrant Certificates shall be numbered and shall
be registered on the books of the Company maintained at the principal office of
the Warrant Agent initially in Chicago, Illinois (or such other place in the
continental United States as the Warrant Agent shall from time to time notify
the Company and the Holders in writing) (the "Warrant Register") as they are
issued. The Company and the Warrant Agent shall be entitled to treat the
registered owner of any Warrant as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person.
2.3 Countersignature of Warrants. The Warrant Certificates shall be
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. Warrant Certificates may be countersigned, however, by the
Warrant Agent and may be delivered by the Warrant Agent notwithstanding that the
persons whose manual or facsimile signatures appear thereon as proper officers
of the Company shall have ceased to be such officers at the time of such
countersignature, issuance or delivery. The Warrant Agent shall, upon written
instructions of the Chairman of the Board, the President, the Chief Executive
Officer, any Vice President, the Treasurer or the Secretary of the Company,
countersign, issue and deliver Warrant Certificates entitling the Holders
thereof to purchase not more than an aggregate of 1,740,000 Warrant Shares
(subject to adjustment pursuant to Section 9 hereof) and shall countersign,
issue and deliver Warrant Certificates as otherwise provided in this Agreement.
Section 3. Transfer and Exchange of Warrants. Subject to the terms
hereof, the Warrant Agent shall initially countersign, register in the Warrant
Register and deliver Warrants hereunder in accordance with the written
instructions of the Company. Subject to the terms hereof and the receipt of such
documentation as the Warrant Agent may reasonably require, the Warrant Agent
shall thereafter from time to time register the transfer of any outstanding
Warrants upon the Warrant Register upon surrender of the Warrant Certificate or
Certificates evidencing such Warrants duly endorsed or accompanied (if so
required by it) by a written instrument or instruments of transfer in form
reasonably 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. Subject to the terms of this Agreement, each
Warrant Certificate may be exchanged for another Warrant Certificate or
Certificates entitling the Holder thereof to purchase a like aggregate number of
Warrant Shares, at the same exercise price and having the same term, as the
surrendered Warrant Certificate or Certificates then entitles such Holder to
purchase. Any Holder desiring to exchange a Warrant Certificate or Certificates
shall make such request in writing delivered to the Warrant Agent, and shall
surrender, duly endorsed or accompanied (if so required by the Warrant Agent) by
a written instrument or instruments of transfer in form reasonably satisfactory
to the Warrant Agent, the Warrant Certificate or Certificates to be so
exchanged. Upon registration of transfer, the Company shall issue and the
Warrant Agent shall countersign and deliver by certified mail a new Warrant
Certificate or Certificates to the persons entitled thereto. Upon any partial
transfer, a new Warrant Certificate of like tenor and representing in the
aggregate the number of warrants which were not so transferred, shall be issued
to, and in the name of, the holder.
No service charge shall be made for any exchange or registration of
transfer of a Warrant Certificate or of Warrant Certificates, but the Company
may require payment of a sum sufficient to cover any stamp tax or other tax or
other governmental charge that is imposed in connection with any such exchange
or registration of transfer pursuant to Section 5 hereof.
By accepting the initial delivery, transfer or exchange of Warrants,
each Holder shall be deemed to agree to the terms of this Agreement as it may be
in effect from time to time, including any amendments or supplements duly
adopted in accordance with Section 18 hereof.
Section 4. Term of Warrants; Exercise of Warrants; Compliance with
Government Regulation.
4.1 Term of Warrants. Subject to the terms of this Agreement, each
Holder shall have the right, until the expiration of the applicable Exercise
Period for the Warrants held, to receive from the Company the number of Warrant
Shares which the Holder may at the time be entitled to receive upon exercise of
such Warrants and payment of the Exercise Price then in effect for such Warrant
Shares, and the Warrant Shares issued to a Holder upon exercise of its Warrants
shall be duly authorized, validly issued, fully paid, nonassessable and shall
not have been issued in violation of or subject to any preemptive rights. Each
Warrant not exercised prior to the expiration of its Exercise Period shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease as of the expiration of such Exercise Period. The
Exercise Period for the Warrants shall begin at 9:00 a.m., New York City time,
on the date of their issuance, and end at 5:00 p.m., New York City time, on (a)
____________________, 2002 (three years after the Effective Date (as defined in
the Plan)) for the Series A Warrants, (b) _______________, 2003 (four years
after the Effective Date) for the Series B Warrants, and (c) _______________,
2004 (five years after the Effective Date) for the Series C Warrants.
4.2 Exercise of Warrants. During the Exercise Period, each Holder may,
subject to this Agreement, exercise from time to time some or all of the
Warrants evidenced by its Warrant Certificate(s) by (i) surrendering to the
Company at the principal office of the Warrant Agent such Warrant Certificate(s)
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"), or , to the extent held in "street" name,
Holder shall comply with applicable law, and (ii) paying to the Warrant Agent
for the account of the Company the aggregate Exercise Price for the number of
Warrant Shares in respect of which such Warrants are exercised. Warrants shall
be deemed exercised on the date such Warrant Certificate(s) are surrendered to
the Warrant Agent and tender of payment of the aggregate Exercise Price is made.
Payment of the aggregate Exercise Price shall be made in cash by wire transfer
of immediately available funds to the Warrant Agent for the account of the
Company or by certified or official bank check or checks to the order of the
Company or by any combination thereof.
Upon the exercise of any Warrants in accordance with this Agreement,
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
Holder may designate, a certificate or certificates for the number of full
Warrant Shares issuable upon the exercise of such Warrants and shall take such
other actions at its sole expense as are necessary to complete the exercise of
such Warrants (including, without limitation, payment of any cash with respect
to fractional interests required under Section 10 hereof). The Warrant Agent
shall have no responsibility or liability for such issuance or the determination
of the number of Warrant Shares issuable upon such exercise. The certificate or
certificates representing such Warrant Shares shall 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 such Warrants are exercised
hereunder. Each Warrant Share, when issued upon exercise of the Warrants, shall
be duly authorized, validly issued, fully paid and non-assessable and will not
have been issued in violation of or subject to any preemptive rights.
In the event that less than all of the Warrants evidenced by a Warrant
Certificate are exercised, the Holder thereof shall be entitled to receive a new
Warrant Certificate or Certificates as specified by such Holder evidencing the
remaining Warrant or Warrants, and the Warrant Agent is hereby irrevocably
authorized by the Company to countersign, issue and deliver the required new
Warrant Certificate or Certificates evidencing such remaining Warrant or
Warrants pursuant to the provisions of this Section 4.2 hereof and of Section 3
hereof. The Company, whenever required by the Warrant Agent, will supply the
Warrant Agent with Warrant Certificates duly executed on behalf to the Company
for such purpose.
Upon delivery of the Warrant Shares issuable upon exercise in
accordance herewith and of any required new Warrant Certificates, the Company
shall direct the Warrant Agent by written order to cancel the Warrant
Certificates surrendered upon exercise. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner permitted by applicable
laws and satisfactory to the Company in accordance with its written instructions
to the Warrant Agent. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
amounts received by the Warrant Agent upon exercise of such Warrants.
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 at its sole expense
supply the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may reasonably request.
4.3 Compliance with Government Regulations; Qualification under
Securities Laws. The Company is issuing the Warrants based upon the belief that
the issuance and the exercise of the Warrants, and the issuance of the Common
Stock upon exercise of the Warrants, are exempt from registration under the
Federal securities laws pursuant to Section 1145 of the Bankruptcy Code. The
Company covenants that if following a due demand to exercise warrants any shares
of Common Stock required to be reserved for purposes of exercise of such
Warrants require, under any federal or state law, registration with or approval
of any governmental authority before such shares may be issued upon exercise
and/or subsequently transferred, and the Holder requesting the exercise of a
Warrant provides an opinion of counsel acceptable to the Company to the effect
that the exercise of the Warrant and/or the transfer of the underlying Common
Stock require registration, then, the Company will, unless the Company has
received an opinion of counsel to the effect that such registration is not then
required by such laws, use its Commercially Reasonable Efforts to cause such
shares to be duly so registered or approved, as the case may be; provided that
in no event shall such shares of Common Stock be issued, and the exercise of all
such Warrants shall be suspended, for the period from the date of such due
demand for exercise until such registration or approval is in effect; provided,
further, that the Exercise Period for such Warrants (but only such Warrants)
shall be extended one day for each day (or portion thereof) that any such
suspension is in effect. The Company shall promptly notify the Warrant Agent of
any such suspension, and the Warrant Agent shall have no duty, responsibility or
liability in respect of any shares of Common Stock issued or delivered prior to
its receipt of such notice. The Company shall promptly notify the Warrant Agent
of the termination of any such suspension, and such notice shall set forth the
number of days that the Exercise Period with respect to such Warrants shall be
extended as a result of such suspension.
Section 5. Payment of Taxes. The Company will pay all documentary stamp
and other like taxes, if any, attributable to the initial issuance and delivery
of the Warrants and the initial issuance and delivery of the Warrant Shares upon
the exercise of Warrants, provided, that the Company shall not be required to
pay any tax or taxes which may be payable in respect of any transfer of the
Warrants or involved in the issuance or delivery of any Warrant Shares in a name
other than that of the Holder of the Warrants being exercised, and the Warrant
Agent shall not register any such transfer or issue or deliver any Warrant
Certificate(s) or Warrant Shares unless or until the persons requesting the
registration or issuance shall have paid to the Warrant Agent for the account of
the Company the amount of such tax, if any, or shall have established to the
reasonable satisfaction of the Company that such tax, if any, has been paid.
Section 6. Mutilated or Missing Warrant Certificates. In the event that
any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company shall issue, and at the direction of the Company by written order the
Warrant Agent shall 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 and the Warrant Agent of such loss, theft or destruction of such Warrant
Certificate and an indemnity or bond, if requested by the Company or the Warrant
Agent, also reasonably satisfactory to them. An applicant for such a substitute
Warrant Certificate shall also comply with such other reasonable procedures as
the Company or the Warrant Agent may reasonably require.
Section 7. Reservation of Warrant Shares. There have been reserved, and
the Company shall at all times keep reserved, out of its authorized Common
Stock, free of all preemptive rights, a number of shares of Common Stock
sufficient to provide for the exercise of the rights of purchase represented by
the outstanding Warrants. The transfer agent for the Common Stock and every
subsequent or other transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the Warrants (each, a "Transfer Agent") will be
and are hereby 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 each Transfer Agent. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from the
Company or a Transfer Agent, as the case may be, the certificates for Warrant
Shares required to honor outstanding Warrants upon exercise thereof in
accordance with the terms of this Agreement. The Company will supply its
Transfer Agents with duly executed stock certificates for such purposes and will
itself provide or otherwise make available any cash which may be payable as
provided in Section 10 hereof. The Company will furnish to its Transfer Agents a
copy of all notices of adjustments and certificates related thereto, transmitted
to each Holder pursuant to Section 9.3 hereof. The Company will give the Warrant
Agent prompt notice of any change in any Transfer Agent or any change of address
of any Transfer Agent.
Before taking any action which would cause an adjustment pursuant to
Section 9 reducing the Exercise Price, the Company will take any and all
corporate action which may be necessary in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
Section 8. Stock Exchange Listings. The Company shall use its
Commercially Reasonable Efforts (including requests for waivers) to have each
series of the Warrants included for quotation in The Nasdaq National Market or
the Nasdaq Small Cap Market or listed on the American Stock Exchange, and shall
use its Commercially Reasonable Efforts to maintain such listing or inclusion.
In the event the Warrants do not qualify for such listing or inclusion, the
Company will use its Commercially Reasonable Efforts (including, requests for
waivers) to effect such inclusion or listing whenever the Warrants qualify
therefor, and prior to such time, shall use Commercially Reasonable Efforts to
cause some other customary trading market to admit the warrants for trading. Any
such listing and inclusion shall be at the Company's sole expense.
Section 9. Adjustment of Exercise Price, Number of Warrant Shares and
Shares of Capital Stock Warrants Are Exercisable Into. The number and kind of
securities purchasable upon the exercise of each Warrant, and the Exercise
Price, shall be subject to adjustment from time to time upon the happening of
certain events, as hereinafter described. The Warrant Agent shall be fully
protected in relying on the certificate described in Section 9.3 below regarding
the adjustment and on any adjustment therein contained, and shall not be
obligated or responsible for calculating any adjustment, nor shall it be deemed
to have knowledge of such an adjustment unless and until it shall have received
such certificate.
9.1 Mechanical Adjustments. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Exercise Price shall be subject to
adjustment as follows:
(a) Adjustment for Change in Capital Stock. Subject to
paragraphs (f) and (h) below, in case the Company shall (i)
pay a dividend on its outstanding shares of Common Stock in
shares of Common Stock or make a distribution of shares of
Common Stock on its outstanding shares of Common Stock, (ii)
make a distribution on its outstanding shares of Common Stock
in shares of its capital stock other than Common Stock, (iii)
subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iv) combine its
outstanding shares of Common Stock into a smaller number of
shares of 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
entity), then the number of Warrant Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled
to receive upon the exercise of the Warrant the kind and
number of Warrant Shares or other securities of the Company
which such Holder would have owned or have been entitled to
receive upon the happening of any of the events described
above had such Warrant been exercised in full immediately
prior to the happening of such event or any record date with
respect thereto. If a Holder is entitled to receive shares of
two or more classes of capital stock of the Company pursuant
to the foregoing upon exercise of Warrants, the allocation of
the adjusted Exercise Price between such classes of capital
stock shall be determined reasonably and in good faith by the
Board of Directors of the Company. After such allocation, the
exercise privilege and the Exercise Price with respect to
each class of capital stock shall thereafter be subject to
adjustment on terms substantially identical to those
applicable to Common Stock in this Section 9. An adjustment
made pursuant to this paragraph (a) shall become effective
immediately after the record date for such event or, if none,
immediately after the effective date of such event. Such
adjustment shall be made successively whenever such an event
occurs.
(b) Adjustment for Rights Issue. Subject to paragraphs
(f) and (h) below, in case the Company shall issue rights,
options or warrants (collectively, "Rights") to all holders
of its outstanding Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a Price Per Share
(as defined in paragraph (e) below) which is lower at the
record date mentioned below than the Current Market Price (as
defined in paragraph (e) below) per share of Common Stock on
such record date, then the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon 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 issuance of
such Rights plus the additional Number of Shares (as defined
in paragraph (e) below) of Common Stock offered for
subscription or purchase in connection with such Rights and
the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such
Rights plus the number of shares of Common Stock which the
aggregate Proceeds (as defined in paragraph (e) below)
received or receivable by the Company upon exercise of such
Rights would purchase at the Current Market Price per share
of Common Stock at such record date. Such adjustment shall be
made whenever Rights are issued, and shall become effective
immediately after the record date for the determination of
stockholders entitled to receive Rights.
(c) Adjustment for Other Distributions. Subject to
paragraphs (f) and (h) below, in case the Company shall
distribute to all holders of its shares of Common Stock (x)
evidences of indebtedness or assets (excluding cash dividends
or distributions payable out of the consolidated earnings or
surplus legally available for such dividends or distributions
and dividends or distributions referred to in paragraphs (a)
or (b) above) of the Company or any corporation or other
legal entity a majority of the voting equity or equity
interests of which are owned, directly or indirectly, by the
Company (a "Subsidiary"), or (y) shares of capital stock of a
Subsidiary (such evidences of indebtedness, assets and
securities as set forth in clauses (x) and (y) above,
collectively, "Assets"), then in each case the number of
Warrant Shares thereafter purchasable upon the exercise of
each Warrant 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 Current Market Price per share of Common Stock on the
date of such distribution and the denominator of which shall
be such Current Market Price per share of Common Stock less
the fair value as of such record date as determined
reasonably and in good faith by the Board of Directors of the
Company of the portion of the Assets applicable to one share
of Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such
distribution.
(d) Adjustment for Common Stock and Convertible
Securities Issue. Subject to paragraphs (f) and (h) below, in
case the Company shall issue shares of its Common Stock, or
securities convertible into, or exchangeable or exercisable
for Common Stock or Rights to subscribe for or purchase such
securities (collectively, "Convertible Securities")
(excluding the issuance of (i) Common Stock or Convertible
Securities issued in any of the transactions described in
paragraphs (a), (b) or (c) above or (ii) Warrant Shares
issued upon the exercise of the Warrants), at a Price Per
Share of Common Stock, in the case of the issuance of Common
Stock, or at a Price Per Share of Common Stock initially
deliverable upon conversion, exercise or exchange of such
Convertible Securities, in each case, together with any other
consideration received by the Company in connection with such
issuance, below the Current Market Price per share of Common
Stock on the date the Company fixed the offering, conversion
or exercise or exchange price of such additional shares, then
the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying
the number of Warrant Shares theretofore purchasable upon
exercise of each Warrant by a fraction, the numerator of
which shall be the total number of shares of Common Stock
outstanding on such date plus the additional Number of Shares
(as defined below) offered for subscription or purchase and
the denominator of which shall be the number of shares
outstanding on such date plus the additional Number of Shares
which the aggregate Proceeds (as defined below) of the total
amount of Convertible Securities so offered would purchase at
the Current Market Price per share of Common Stock at such
record date. In case the Company shall issue and sell
Convertible Securities for a consideration consisting, in
whole or in part, of property other than cash or its
equivalent, then in determining the "Price Per Share" of
Common Stock and the "consideration received by the Company"
for purposes of this paragraph (d), the Board of Directors of
the Company shall reasonably and in good faith determine the
fair value of such property. The determination of whether any
adjustment is required under this paragraph (d), by reason of
the sale and issuance of any Convertible Securities and the
amount of such adjustment, if any, shall be made at such time
and not at the subsequent time of issuance of shares of
Common Stock upon the exercise, conversion or exchange of
Convertible Securities.
(e) Current Market Price; Price Per Share. (i) For the
purpose of any computation under Section 4.2 hereof or this
Section 9.1, the "Current Market Price" per share of Common
Stock at any date shall be the average of the daily closing
prices for the 20 consecutive trading days preceding the date
of such computation. The closing price for each day shall be
(x) if the Common Stock shall be then 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,
(y) 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 or, in case no such reported sale takes place on such
day, the average of the closing bid and asked prices regular
way for such day, in each case on the principal national
securities exchange on which the shares of Common Stock are
listed or admitted to trading (which shall be the national
securities exchange on which the greatest number of shares of
the Common stock have been traded during such 20 consecutive
trading days) or (z) if the Common Stock is not listed or
admitted to trading, the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market as
reported by The Nasdaq National Market or any comparable
system or, if the Common Stock is not included for quotation
in The Nasdaq National Market or a comparable system, the
average of the closing bid and asked prices as furnished by
two members of the NASD selected reasonably and in good faith
from time to time by the Board of Directors for that purpose.
In the absence of one or more such quotations, the Current
Market Price per share of the Common Stock shall be
determined reasonably and in good faith by the Board of
Directors of the Company.
(ii) For purposes of this Section 9.1, "Price Per Share"
shall be defined and determined according to the following
formula:
P = R/N
where
P = Price Per Share;
R = the "Proceeds" received or receivable by
the Company which (x) in the case of shares
of Common Stock is the total amount received
or receivable by the Company in
consideration for the issuance and sale of
such shares; (y) in the case of Rights or of
Convertible Securities with respect to
shares of Common Stock, is the total amount
received or receivable by the Company in
consideration for the issuance and sale of
Rights or such Convertible Securities, plus
the minimum aggregate amount of additional
consideration, other than the surrender of
such Convertible Securities, payable to the
Company upon exercise, conversion or
exchange thereof; and (z) in the case of
Rights to subscribe for or purchase such
Convertible Securities, is the total amount
received or receivable by the Company in
consideration for the issuance and sale of
such Rights plus the minimum aggregate
amount of additional consideration, other
than the surrender of such Convertible
Securities, payable upon the exercise of the
Right and the conversion or exchange or
exercise of such Convertible Securities;
provided that in each case the proceeds
received or receivable by the Company shall
be the net cash proceeds after deducting
therefrom any compensation paid or discount
allowed in the sale, underwriting or
purchase thereof by underwriters or dealers
or other performing similar services;
N = the "Number of Shares," which (x) in the
case of Common Stock is the number of shares
issued; and (y) in the case of Rights or of
Convertible Securities with respect to
shares of Common Stock, is the maximum
number of shares of Common Stock initially
issuable upon exercise, conversion or
exchange thereof.
(f) When De Minimis Adjustment May Be Deferred. No
adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%)
in the number of Warrant Shares purchasable upon the exercise
of each Warrant, provided that any adjustments which by
reason of this paragraph (f) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the
nearest one-thousandth of a Warrant Share and the nearest
cent.
(g) Adjustment in Exercise Price. Whenever the number of
Warrant Shares purchasable upon the exercise of each Warrant
is adjusted as herein provided, the Exercise Price payable
upon exercise of each Warrant immediately prior to such
adjustment shall be adjusted by multiplying such Exercise
Price by a fraction, the numerator of which shall be the
number of Warrant Shares purchasable upon the exercise of
each Warrant immediately prior to such adjustment and the
denominator of which shall be the number of Warrant Shares
purchasable immediately thereafter.
(h) When No Adjustment Required. No adjustment in the
number of Warrant Shares purchasable upon the exercise of
each Warrant or in the exercise price need be made under this
Section 9.1 in connection with: (i) the issuance of Common
Stock, options, rights, Warrants or other securities pursuant
to the Plan; (ii) shares of Common Stock, options, rights,
warrants or other securities issued pursuant to any plan
adopted by the Company or its subsidiaries for the benefit of
employees or directors; (iii) any issuance of shares of
Common Stock or securities convertible into or exchangeable
for shares of Common Stock pursuant to an underwritten public
offering for a price per share of Common Stock in the case of
an issuance of shares of Common Stock, or for a price per
share of Common Stock initially deliverable upon conversion
or exchange of such securities, that is equal to or greater
than 95% of the Current Market Price per share of Common
Stock on the date the Company fixed the offering, conversion
or exchange price of such additional shares of Common Stock;
(iv) sales of Common Stock pursuant to a plan adopted by the
Company for reinvestment of dividends or interest; provided,
however, that if such sales of Common Stock are at a discount
of 20% to the Current Market Price, such issuances shall
require adjustment under this Section, or (v) shares of
Common Stock issued to shareholders of any corporation that
is acquired by, merged into or made a part or subsidiary of
the Company in an arm's-length transaction. Additionally, no
adjustment need be made if the Company issues or distributes
to each Holder of Warrants the shares, rights, options,
warrants, evidences of indebtedness, assets or other
securities referred to in those paragraphs which each Holder
of Warrants would have been entitled to receive had the
Warrants been exercised for the number of Warrant Shares for
which Warrants are then exercisable prior to the happening of
such event or the record date with respect thereto. No
adjustment in the number of Warrant Shares will be made for a
change in the par value of the shares of Common Stock.
(i) Capitalization, Reclassification or Consolidation.
If any capital reorganization of the Company, or any
reclassification of the Common Stock, or any consolidation of
the Company with or merger of the Company with or into any
other Person or any sale, lease or other transfer of all or
substantially all of the assets of the Company to any other
Person, shall be effected in such a way that the holders of
the Common Stock shall be entitled to receive stock, other
securities, cash or other assets (whether such stock, other
securities, cash or other assets are issued or distributed by
the Company or another Person) with respect to or in exchange
for the Common Stock, then, upon exercise of each Warrant,
the Warrantholder shall have the right to receive the kind
and amount of stock, other securities, cash or other assets
receivable upon such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer, by a
holder of the number of Warrant Shares that such Warrant
holder would have been entitled to receive upon exercise of
such Warrant had such Warrant been exercised immediately
before such reorganization, reclassification, consolidation,
merger or sale, lease or other transfer, subject to
adjustments (as determined in good faith by the Board of
Directors of the Company). Adjustments for events subsequent
to the effective date of such a reorganization,
reclassification, consolidation, merger, sale or transfer of
assets shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Agreement. In any such
event, effective provisions shall be made in the certificate
or articles of incorporation of the resulting or surviving
corporation, in any contract of sale, merger, conveyance,
lease transfer or otherwise so that the provisions set forth
herein for the protection of the rights of the Warrantholders
shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the
obligation to deliver, upon exercise, such shares of stock,
other securities, cash and property. The provisions of
Section 9 shall similarly apply to successive consolidations,
mergers, sales, leases or transfers.
(j) Shares of Common Stock. For all purposes of this
Agreement, the term "shares of Common Stock" shall mean (i)
the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other
class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes
in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 9.1,
the Holders shall become entitled to purchase any securities
of the Company other than shares of Common Stock, thereafter
the number of such other shares so purchasable upon exercise
of each Warrant and the Exercise Price of such shares shall
be subject to adjustment from time to time in a manner and on
terms substantially identical to the provisions with respect
to the Warrant Shares contained in paragraphs (a) through (h)
above, and the provisions of this Agreement with respect to
the Warrant Shares shall apply on like terms to any such
other securities.
(k) Expiration of Rights, etc. Upon the expiration of
any Rights or conversion or exchange or exercise rights, if
any thereof shall not have been exercised, the Exercise Price
and the number of Warrant Shares purchasable upon the
exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been
had it been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (A)
the only shares of Common Stock so issued were the shares of
Common Stock, if any, actually issued or sold upon the
exercise of such Rights or conversion or exchange or exercise
rights and (B) such shares of Common Stock, if any, were
issued or sold for the consideration actually received by the
Company upon such exercise plus the aggregate consideration,
if any, actually received by the Company for the issuance,
sale or grant of all of such Rights or conversion or exchange
or exercise rights whether or not exercised, provided that no
such readjustment shall have the effect of increasing the
Exercise Price or decreasing the number of Warrant Shares
purchasable upon the exercise of each Warrant by an amount in
excess of the amount of the adjustment initially made in
respect of the issuance, sale or grant of such Rights or
conversion or exchange or exercise rights.
9.2 Voluntary Adjustment by the Company. (a) The Company may at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price, and/or increase the number of Warrant shares issuable upon
exercise of the Warrant, to any amount deemed appropriate by the Board of
Directors of the Company.
(b) If, after one or more adjustments to the Exercise Price pursuant
to Section 9, the Exercise Price cannot be reduced further without falling below
the greater of (i) $0.01 or (ii) the lowest positive exercise price legally
permissible for warrants to acquire shares of Common Stock, the Company shall
make further adjustments to compensate the Holder, consistent with the foregoing
principles, as the Board of Directors, acting in good faith, deems necessary,
including an increase in the number of Warrant Shares issuable upon exercise of
outstanding Warrants and/or cash payment to the Holders.
9.3 Notice of Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Exercise Price of Warrant
Shares is adjusted, as herein provided, the Company shall cause the Warrant
Agent promptly to mail to each Holder, at the sole expense of the Company by
first class mail, postage prepaid, notice of such adjustment or adjustments and
shall deliver to the Warrant Agent a certificate of a firm of independent public
accounts (who may be the regular accountants employed by the Company) setting
forth the number of Warrant Shares purchasable upon the exercise of each Warrant
and the Exercise Price of Warrant Shares after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting forth in
reasonable detail the computations by which such adjustment was made. The
Warrant Agent shall be entitled to rely on such certificate and shall be under
no duty or responsibility with respect to any such certificate, except to
exhibit the same, from time to time, to any Holder requesting an inspection
thereof during reasonable business hours. The Warrant Agent shall not at any
time be under any duty or responsibility to any Holder to determine whether any
facts exist which may require any adjustment of the Exercise Price or the number
of Warrant Shares or other stock or property purchasable on exercise of
Warrants, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed in making such adjustment.
9.4 Preservation of Purchase Rights upon Merger or Consolidation. In
case of any consolidation of the Company with or merger of the Company into
another entity, the Company or such successor entity shall execute and deliver
to the Warrant Agent an agreement, which shall be binding on the Holders, that
each Holder shall have the right thereafter upon payment of the Exercise Price
in effect immediately prior to such action (after giving effect to any
applicable adjustments under Section 9.1 hereof) to purchase upon exercise of
each Warrant (and in lieu of the Common Stock issuable upon exercise of the
Warrant) the kind and amount of shares and other securities and property
(including cash) which such Holder would have owned or have been entitled to
receive after the happening of such consolidation or merger had such Warrant
been exercised immediately prior to such action. The Company shall at its sole
expense mail by first class mail, postage prepaid, to each Holder notice of the
execution of any such agreement. Such agreement shall provide for adjustments,
which shall be substantially identical to the adjustments provided for in this
Section 9. In addition, the Company shall not merge or consolidate with or into,
any other entity unless the successor entity (if not the Company), shall
expressly assume, by supplemental agreement reasonably satisfactory in form and
substance to the Warrant Agent in its sole judgment and executed and delivered
to the Warrant Agent, 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. The provisions of this Section 9.4 shall similarly apply to
successive consolidations or mergers. The Warrant Agent shall be under a good
faith duty and responsibility to determine the correctness of any provisions
contained in any such agreement relating to the kind or amount of shares of
stock or other securities or property receivable upon exercise of Warrants or
with respect to the method employed and provided therein for any adjustments and
shall be entitled to rely upon the provisions contained in any such agreement.
In the event of any conflict between Section 9.4 and Section 9.1(i), Section
9.1(i) shall prevail. 9.5 Statement on 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 Exercise Price and number and kind of Warrant Shares as are
stated in the Warrants initially issuable pursuant to this Agreement.
Section 10. Fractional Interests. Neither the Company nor the Warrant
Agent shall be required to issue fractional Warrant Shares on the exercise of
Warrants. If more than one Warrant shall be exercised at the same time by the
same Holder, the number of full Warrant Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of Warrants so
exercised. If any fraction of a Warrant Share would, except for the provisions
of this Section 10, be issuable on the exercise of any Warrant, then the Company
shall pay an amount in cash equal to the closing price for one share of Common
Stock on the date the Warrant Certificate is presented for exercise (determined
in accordance with the second sentence of Section 9.1(e)(i) hereof), multiplied
by such fraction.
Section 11. No Rights as Stockholders; Notices to Holders. Nothing
contained in this Agreement or in any of the Warrants shall be construed as
conferring upon the Holders or their transferees the right to vote or to receive
dividends or to consent or to receive notice as stockholders in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company.
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 securities or assets (other than cash
dividends); or
(c) of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required,
or of the conveyance or transfer of a substantial portion of the
properties and assets of the Company for which approval of any
stockholders of the Company is required, 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;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each Holder at its address appearing on the Warrant Register, at
least twenty (20) days 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 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 reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, as well as 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 11 or any defect therein shall not affect the
legality or validity of any distribution, right, option, Warrant,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation, winding up or action, or the vote upon any of the foregoing.
Section 12. Payments in U.S. Currency. All payments required to be made
hereunder shall be made in lawful money of the United States of America.
Section 13. Merger or 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 corporation trust 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 15 hereof. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, 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 deliver such Warrant Certificates so countersigned; 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 its name;
and in all such cases such Warrant Certificates shall be fully valid and
effective as provided therein and in this Agreement.
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 may adopt the countersignatures under its prior
name and deliver such Warrant Certificates so countersigned; 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 be
fully valid and effective as provided therein and in this Agreement.
Section 14. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company hereunder and in accordance
with the terms and conditions hereof, and the Warrant Agent hereby accepts such
appointment.
14.1 Concerning the Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, and no implied duties or obligations shall be read into this Warrant
Agreement against the Warrant Agent, by all of which the Company and the
Holders, by their acceptance of Warrant Certificates, shall be bound.
14.2 Correctness of Statements. The statements contained herein and in
the Warrant Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of the same
except statements that describe the Warrant Agent or action taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution of the
Warrant Certificates or Warrants except as herein otherwise provided.
14.3 Breach of Covenants. 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 to be complied with by the Company.
14.4 Performance of Duties. The Warrant Agent may execute and exercise
any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents and shall not be
responsible for the misconduct or negligence of any attorney or agent (which
shall not include an employee of the Warrant Agent) appointed with due care.
14.5 Reliance on Counsel. Before the Warrant Agent acts or refrains
from acting, the Warrant Agent may consult at any time with legal 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 in
respect to any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel.
14.6 Proof of Actions Taken. Whenever in the performance of its duties
under this Agreement the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed conclusively to
be proved and established by a certificate signed by any of the Chairman of the
Board, the President, a Vice President, the Treasurer or the Secretary of the
Company and delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
14.7 Compensation and Indemnification. The Company agrees to pay the
Warrant Agent reasonable compensation for all services rendered by the Warrant
Agent in the performance of its duties under this Agreement, to reimburse the
Warrant Agent for all reasonable expenses, taxes and governmental charges and
other charges of any kind and nature incurred by the Warrant Agent in the
performance of its duties under this Agreement (including but not limited to
legal fees and expenses), and to indemnify the Warrant Agent and its officers,
agents and directors for and to hold each harmless from any and all losses,
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent or any of its agents in the performance of its
duties under this Agreement, except as a result of the Warrant Agent's gross
negligence or willful misconduct as determined in a final judgment of a court of
competent jurisdiction and authority. The Company's obligations under this
Section 14.7 and any claim arising hereunder shall survive the resignation or
removal of the Warrant Agent and the termination or discharge of the Company's
obligations under this Agreement. The costs and expenses incurred in enforcing
this right of indemnification shall be paid by the Company.
14.8 Legal Proceedings. 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 or any one or more Holders shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred or any liabilities which may arise, but this
provision shall not affect the power of the Warrant Agent to take such action as
the Warrant Agent may consider proper, whether with or without any such security
or indemnity. All rights of action of any Holder 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 Holders, as
their respective rights or interests may appear.
14.9 Other Transactions in Securities of Company. 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 any other securities of the Company or
have a pecuniary interest 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.
14.10 Liability of Warrant Agent. The Warrant Agent shall act hereunder
solely as agent, 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
negligence or bad faith.
14.11 Reliance on Documents. The Warrant Agent will not incur any
liability or responsibility to the Company or to any Holder for any action taken
in reliance on any notice, resolution, waiver, consent order, certificate, or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
14.12 Validity of Agreement. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent) or for
any of the statements of fact or recitals contained in this Agreement or in
respect of the validity or execution of any Warrant Certificate (except its
countersignature thereof) or any Warrant; nor shall the Warrant Agent by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Warrant Shares (or other securities) to be
issued pursuant to this Agreement or any Warrant, or as to whether any Warrant
Shares (or other securities) will, when issued, be validly issued, fully paid
and nonassessable, or as to the Exercise Price or the number or amount of
Warrant Shares or other securities or any Assets or other property issuable upon
exercise of any Warrant.
14.13 Instructions from Company. The Warrant Agent is hereby authorized
and directed to accept instructions with respect to the performance of its
duties hereunder from any person believed in good faith by the Warrant Agent to
be one of the Chairman of the Board, the President, a Vice President, the
Treasurer or the Secretary of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and shall not be liable
for any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer or officers or any delay in acting while
waiting for these instructions..
Section 15. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
thirty (30) days' written notice. The Warrant Agent may be removed by like
notice to the Warrant Agent and the Holders from the Company, such notice to
specify the date when removal shall become effective. If the Warrant Agent shall
resign or be removed or shall otherwise become incapable of acting, then the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days after such
removal or written notification of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by any Holder (who shall with such
notice submit his Warrant Certificate or Certificates for inspection by the
Company), then any Holder may apply to any court of competent jurisdiction for
the appointment of a successor to the Warrant Agent. Any successor Warrant
Agent, whether appointed by the Company or such a court, shall be a bank or
trust company, in good standing, incorporated under the laws of the United
States of America or any state thereof and having at the time of its appointment
as Warrant Agent a combined capital and surplus of at least $100,000,000. After
appointment and acceptance of such appointment in writing, the successor 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 deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and shall execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to file any notice provided for in this Section 15, however, or
any defect therein, shall not affect the legality or validity of the resignation
or removal of the Warrant Agent or the appointment of the successor Warrant
Agent, as the case may be. In the event of such resignation or removal, the
successor Warrant Agent shall mail, by first class mail, postage prepaid, to
each Holder, written notice of such removal or resignation and the name and
address of such successor Warrant Agent.
Section 16. Notices. Any notice pursuant to this Agreement by the
Company or by any Holder to the Warrant Agent, shall be in writing and shall be
delivered in person or sent by registered or certified mail and shall be deemed
given upon receipt at its offices at Harris Trust & Savings Bank, 311 W. Monroe
Street, Chicago, IL 60606 Attention: Thomas Blatchford. Any notice pursuant to
this Agreement by the Warrant Agent or by any Holder to the Company, shall be in
writing and shall be delivered in person or by confirmed facsimile transmission
(plus a copy delivered by overnight mail) or first class mail, postage prepaid
at its offices at Mercury Finance Company, 100 Field Drive, Lake Forest,
Illinois 60045, Attention: Corporate Secretary, Telecopier No.:
___________________. Each party hereto may from time to time change the address
to which its notices are to be delivered or mailed hereunder by notice to the
other party. Any notice mailed pursuant to this Agreement by the Company or the
Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses in the Warrant Register. The initial address of each Holder
shall be as provided by the Company to the Warrant Agent. Any Holder may change
its address by notice to the Company and the Warrant Agent given in accordance
with this Section 16.
Section 17. Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire Warrants, the same shall thereupon be delivered to
the Warrant Agent and be cancelled by it and retired. The Warrant Agent shall
cancel any Warrant Certificate surrendered for exchange, substitution, transfer
or exercise in whole or in part.
Section 18. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement, the Warrants and
the Warrant Certificates without approval of any Holder, 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 comply with
the requirements of any national securities exchange or The Nasdaq National
Market, 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 be inconsistent with the provisions of the
Warrants and this Agreement. Any other supplement or amendment to this Agreement
may be made with the approval of the Holders of a majority of outstanding
Warrants of each series of Warrants, voting separately as three classes.
Notwithstanding the foregoing, any amendment or supplement that (i) increases
the Exercise Price; (ii) decreases the number of shares of Common Stock issuable
upon exercise of a Warrant; or (iii) shortens the period during which the
Warrants may be exercised shall require the consent of each Holder of a Warrant
affected thereby. Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of the Warrant Agent
under this Agreement will be effective against the Warrant Agent without the
execution of such supplement or amendment by the Warrant Agent.
Section 19. 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 solely to the benefit of the Company or the Warrant Agent and their
respective successors hereunder.
Section 20. Applicable Law. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of the
state of Delaware without giving effect to the principles of conflict of laws
thereof, except as to the rights and obligations of the Warrant Agent, which
shall be governed by and construed in accordance with the laws of the Sate of
Illinois.
Section 21. 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 Holders 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, the Warrant Agent, their respective successors, and the
Holders of the Warrants.
Section 22. Counterparts. This Agreement may be executed in any number
of counterparts; 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 23. Captions. The captions of the Sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
MERCURY FINANCE COMPANY
By:
Name:
Title:
HARRIS TRUST AND SAVINGS BANK
as Warrant Agent
By:
Name:
Title:
No. __________ __________ Warrants
Series A
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________ or
registered assigns, is the registered holder of Series A Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2002
[Three years from the Effective Date] (the "Expiration Date"), to purchase
Common Stock, $___ par value per share (the "Common Stock"), of MERCURY FINANCE
COMPANY, a Delaware corporation (the "Company"). The Warrants may be exercised
at any time from 9:00 am., New York City time, on __________ __, 1998 to 5:00
p.m., New York City time, on the Expiration Date. Each Warrant entitles the
holder upon exercise to receive from the Company, if exercised before 5:00 p.m.,
New York City time, on the Expiration Date, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the Exercise Price (as defined in
the Warrant Agreement referred to on the reverse side hereof), 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
Warrant Agent, but only subject to the conditions set forth herein and in the
Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
__________ __, 2002 [THREE YEARS FROM THE EFFECTIVE DATE] SHALL BECOME VOID.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this Warrant
Certificate to be duly executed.
MERCURY FINANCE COMPANY
By:
Title:
Dated:
Countersigned:
[HARRIS TRUST AND SAVINGS BANK],
as Warrant Agent
By:
Authorized Signatory
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company and are
issued or to be issued pursuant to a Warrant Agreement dated as of __________,
1998 (the "Warrant Agreement"), duly executed and delivered by the Company to
Harris Trust and Savings Bank, as Warrant Agent (the "Warrant Agent"), 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 Warrant Agent,
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company. By accepting initial delivery, transfer or exchange of this Warrant,
the duly registered holder shall be deemed to have agreed to the terms of the
Warrant Agreement as it may be in effect from time to time, including any
amendments or supplements duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in the manner described below at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or its
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
Payment of the Exercise Price may be made in cash by wire transfer to
the Warrant Agent for the account of the Company or by certified or official
bank check or checks to the order of the Company or by any combination thereof.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of each
Warrant, and the Exercise Price of each Warrant, may, subject to certain
conditions, be adjusted. No fractions of a share of Common Stock will be issued
upon the exercise of any Warrant, but the Company shall pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent 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 or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) 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 and the Warrant Agent may deem and treat the registered
holder(s) hereof as the absolute owner(s) 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(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this Series A
Warrant, according to the terms and conditions hereof, to the extent of
purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of the
undersigned or its assignee as indicated on the Assignment Form.
Dated:
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
(please typewrite or print in block letters)
Address:
Signature
Note: The signature must conform in all respects to
name of holder as specified on the face of this
Warrant Certificate
Signature Guaranteed:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Name:
(please typewrite or print in block letters)
Address:
its right to purchase __________ shares of Common Stock represented by this
Series A Warrant and does hereby irrevocably constitute and appoint __________
Attorney, to transfer the same on the books of the Company, with full power of
substitution in the premises.
Dated:
Signature:
Social Security or other identifying Note: The signature must
number of holder conform in all respects to
name of holder as specified on the
face of this Warrant Certificate
Signature Guaranteed:
No. __________ __________ Warrants
Series B
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________ or
registered assigns, is the registered holder of Series B Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2003
[Four years from the Effective Date] (the "Expiration Date"), to purchase Common
Stock, $___ par value per share (the "Common Stock"), of MERCURY FINANCE
COMPANY, a Delaware corporation (the "Company"). The Warrants may be exercised
at any time from 9:00 am., New York City time, on __________ __, 1998 to 5:00
p.m., New York City time, on the Expiration Date. Each Warrant entitles the
holder upon exercise to receive from the Company, if exercised before 5:00 p.m.,
New York City time, on the Expiration Date, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the Exercise Price (as defined in
the Warrant Agreement referred to on the reverse side hereof), 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
Warrant Agent, but only subject to the conditions set forth herein and in the
Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
__________ __, 2003 [FOUR YEARS FROM THE EFFECTIVE DATE] SHALL BECOME VOID.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this Warrant
Certificate to be duly executed.
MERCURY FINANCE COMPANY
By:
Title:
Dated:
Countersigned:
[HARRIS TRUST AND SAVINGS BANK],
as Warrant Agent
By:
Authorized Signatory
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company and are
issued or to be issued pursuant to a Warrant Agreement dated as of __________,
1998 (the "Warrant Agreement"), duly executed and delivered by the Company to
Harris Trust and Savings Bank, as Warrant Agent (the "Warrant Agent"), 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 Warrant Agent,
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company. By accepting initial delivery, transfer or exchange of this Warrant,
the duly registered holder shall be deemed to have agreed to the terms of the
Warrant Agreement as it may be in effect from time to time, including any
amendments or supplements duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in the manner described below at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or its
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
Payment of the Exercise Price may be made in cash by wire transfer to
the Warrant Agent for the account of the Company or by certified or official
bank check or checks to the order of the Company or by any combination thereof.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of each
Warrant, and the Exercise Price of each Warrant, may, subject to certain
conditions, be adjusted. No fractions of a share of Common Stock will be issued
upon the exercise of any Warrant, but the Company shall pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent 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 or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) 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 and the Warrant Agent may deem and treat the registered
holder(s) hereof as the absolute owner(s) 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(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this Series B
Warrant, according to the terms and conditions hereof, to the extent of
purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of the
undersigned or its assignee as indicated on the Assignment Form.
Dated:
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
(please typewrite or print in block letters)
Address:
Signature
Note: The signature must conform in all respects to
name of holder as specified on the face of this
Warrant Certificate
Signature Guaranteed:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Name:
(please typewrite or print in block letters)
Address:
its right to purchase __________ shares of Common Stock represented by this
Series B Warrant and does hereby irrevocably constitute and appoint __________
Attorney, to transfer the same on the books of the Company, with full power of
substitution in the premises.
Dated:
Signature:
Social Security or other identifying Note: The signature must
number of holder conform in all respects to
name of holder as specified on the
face of this Warrant Certificate
Signature Guaranteed:
No. __________ __________ Warrants
Series C
Warrant Certificate
MERCURY FINANCE COMPANY
This Warrant Certificate certifies that ____________________ or
registered assigns, is the registered holder of Series C Warrants (the
"Warrants") expiring at 5:00 p.m., New York City time, on __________ __, 2004
[Five years from the Effective Date] (the "Expiration Date"), to purchase Common
Stock, $___ par value per share (the "Common Stock"), of MERCURY FINANCE
COMPANY, a Delaware corporation (the "Company"). The Warrants may be exercised
at any time from 9:00 am., New York City time, on __________ __, 1998 to 5:00
p.m., New York City time, on the Expiration Date. Each Warrant entitles the
holder upon exercise to receive from the Company, if exercised before 5:00 p.m.,
New York City time, on the Expiration Date, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the Exercise Price (as defined in
the Warrant Agreement referred to on the reverse side hereof), 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
Warrant Agent, but only subject to the conditions set forth herein and in the
Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events as set forth in the Warrant Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
__________ __, 2004 [FIVE YEARS FROM THE EFFECTIVE DATE] SHALL BECOME VOID.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
IN WITNESS WHEREOF, MERCURY FINANCE COMPANY has caused this Warrant
Certificate to be duly executed.
MERCURY FINANCE COMPANY
By:
Title:
Dated:
Countersigned:
[HARRIS TRUST AND SAVINGS BANK],
as Warrant Agent
By:
Authorized Signatory
[Form of Warrant Certificate]
(Reverse)
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company and are
issued or to be issued pursuant to a Warrant Agreement dated as of __________,
1998 (the "Warrant Agreement"), duly executed and delivered by the Company to
Harris Trust and Savings Bank, as Warrant Agent (the "Warrant Agent"), 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 Warrant Agent,
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Company. By accepting initial delivery, transfer or exchange of this Warrant,
the duly registered holder shall be deemed to have agreed to the terms of the
Warrant Agreement as it may be in effect from time to time, including any
amendments or supplements duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in the manner described below at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or its
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
Payment of the Exercise Price may be made in cash by wire transfer to
the Warrant Agent for the account of the Company or by certified or official
bank check or checks to the order of the Company or by any combination thereof.
The Warrant Agreement provides that upon the occurrence of certain
events the number of shares of Common Stock issuable upon the exercise of each
Warrant, and the Exercise Price of each Warrant, may, subject to certain
conditions, be adjusted. No fractions of a share of Common Stock will be issued
upon the exercise of any Warrant, but the Company shall pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant
Agent 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 or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) 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 and the Warrant Agent may deem and treat the registered
holder(s) hereof as the absolute owner(s) 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(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this Series C
Warrant, according to the terms and conditions hereof, to the extent of
purchasing __________ shares of Common Stock and hereby makes payment of
$________ in payment of the exercise price thereof. If the number of shares
shall not be all of the shares purchasable under this Warrant, then a new
Warrant Certificate for the balance remaining shall be issued in the name of the
undersigned or its assignee as indicated on the Assignment Form.
Dated:
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
(please typewrite or print in block letters)
Address:
Signature
Note: The signature must conform in all respects to
name of holder as specified on the face of this
Warrant Certificate
Signature Guaranteed:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Name:
(please typewrite or print in block letters)
Address:
its right to purchase __________ shares of Common Stock represented by this
Series C Warrant and does hereby irrevocably constitute and appoint __________
Attorney, to transfer the same on the books of the Company, with full power of
substitution in the premises.
Dated:
Signature:
Social Security or other identifying Note: The signature must
number of holder conform in all respects to
name of holder as specified on the
face of this Warrant Certificate
Signature Guaranteed:
