Exhibit 4.8
WARRANT
To Purchase Common Stock of
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
No. of Shares of Common Stock: 830,039
Issued August ___, 1995
TABLE OF CONTENTS
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1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. EXERCISE OF WARRANT . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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2.1 Manner of Exercise . . . . . . . . . . . . . . . . . . . . . . . . 6
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2.2 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 7
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2.3 Continued Validity . . . . . . . . . . . . . . . . . . . . . . . . 8
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3. TRANSFER, DIVISION AND COMBINATION. . . . . . . . . . . . . . . . . . . 8
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3.1 Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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3.2 Division and Combination . . . . . . . . . . . . . . . . . . . . . 9
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3.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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3.4 Maintenance of Books . . . . . . . . . . . . . . . . . . . . . . . 9
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4. ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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4.1 Prepayment of Obligations under Override Agreement . . . . . . . . 9
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4.2 Stock Dividends, Subdivisions and Combinations . . . . . . . . . . 9
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4.3 Other Provisions Applicable to Adjustments Under This Section 10
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4.4 Reorganization, Reclassification, Merger, Consolidation or
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Disposition of Assets. . . . . . . . . . . . . . . . . . . . . . . 11
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5. NOTICES TO WARRANT HOLDERS. . . . . . . . . . . . . . . . . . . . . . . 12
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5.1 Notice of Adjustments. . . . . . . . . . . . . . . . . . . . . . . 12
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5.2 Notice of Certain Corporate Action . . . . . . . . . . . . . . . . 12
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6. NO IMPAIRMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
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APPROVAL OF ANY GOVERNMENTAL AUTHORITY; PREFERRED STOCK . . . . . . . . 13
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8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS. . . . . . . . . . . 13
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9. RESTRICTIONS ON TRANSFERABILITY . . . . . . . . . . . . . . . . . . . . 14
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9.1 Restrictive Legend . . . . . . . . . . . . . . . . . . . . . . . . 14
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9.2 Notice of Proposed Transfers; Requests for Registration. . . . . . 15
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9.3 Termination of Restrictions. . . . . . . . . . . . . . . . . . . . 15
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9.4 Listing on Securities Exchange . . . . . . . . . . . . . . . . . . 16
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10. SUPPLYING INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . 16
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11. LOSS OR MUTILATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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12. OFFICE OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 16
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13. FINANCIAL AND BUSINESS INFORMATION. . . . . . . . . . . . . . . . . . . 17
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13.1 Filings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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13.2 Quarterly Information. . . . . . . . . . . . . . . . . . . . . . . 17
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13.3 Annual Information . . . . . . . . . . . . . . . . . . . . . . . . 17
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14. THE COMPANY'S REPURCHASE OF THE WARRANT . . . . . . . . . . . . . . . . 18
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14.1 Option to Repurchase Warrant . . . . . . . . . . . . . . . . . . . 18
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14.2 Determination and Payment of Repurchase Price. . . . . . . . . . . 18
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14.3 Pro Rata Repurchase of Warrants. . . . . . . . . . . . . . . . . . 19
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15. APPRAISAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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16. LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . 20
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17. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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17.1 Nonwaiver and Expenses . . . . . . . . . . . . . . . . . . . . . . 20
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17.2 Notice Generally . . . . . . . . . . . . . . . . . . . . . . . . . 20
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17.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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17.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 22
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17.6 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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17.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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17.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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17.9 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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17.10 CONSENT TO JURISDICTION 23
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17.11 MUTUAL WAIVER OF JURY TRIAL 23
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EXHIBITS
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EXHIBIT A Subscription Form
EXHIBIT B Assignment Form
EXHIBIT C Schedule of Sureties for Whom F&D Holds the Warrant
EXHIBIT D-1 Form of Antecedent Debt Warrant
EXHIBIT D-2 Form of Metra Warrant
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED IN VIOLATION OF SUCH ACT OR STATE LAW, THE RULES AND REGULATIONS
THEREUNDER OR THE PROVISIONS OF THIS WARRANT.
No. of Shares of
Common Stock: 830,039
WARRANT
To Purchase Common Stock of
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
THIS IS TO CERTIFY THAT FIDELITY AND DEPOSIT COMPANY OF MARYLAND ON
BEHALF OF ITSELF AND CERTAIN COSURETIES AND OTHER REINSURERS (in such capacity,
"F&D"), or its registered assigns, is entitled, at any time during the Exercise
Period (as hereinafter defined), to purchase from MORRISON KNUDSEN CORPORATION,
a Delaware corporation (the "Company"), up to 830,039 shares of Common Stock
(as hereinafter defined and subject to adjustment as provided herein), in whole
or in part, including fractional parts, at a purchase price of $6.75 per share,
all on the terms and conditions and pursuant to the provisions hereinafter set
forth.
1. DEFINITIONS
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As used in this Warrant, the following terms have the respective meanings
set forth below:
"Additional Shares of Common Stock" shall mean all shares of Common
Stock issued by the Company after the Closing Date, other than Warrant Stock.
"Antecedent Debt Warrant" shall mean the Warrant to Purchase Common
Stock of the Company, issued of even date herewith in the form attached as
Exhibit D-1 hereto, and any amendments thereto, and all warrants issued upon
transfer, division or combination of, or in substitution for, such warrant.
"Appraised Value" shall mean, in respect of any share of Common
Stock on any date herein specified, the fair market value of such share of
Common Stock (determined without giving effect to any discount for (i) a
minority interest or (ii) any lack of liquidity of the Common Stock or the fact
that
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the Company may have no class of equity registered under the Exchange Act)as of
the last day of the most recent fiscal month prior to such date specified,
based on the value of the Company as a whole, as determined by an investment
banking firm selected in accordance with the terms of SECTION 15 on the basis of
a sale between a willing seller and buyer, neither acting under any compulsion,
divided by the number of Fully Diluted Outstanding shares of Common Stock.
"Book Value" shall mean, in respect of any share of Common Stock on
any date herein specified, the consolidated book value of the Company applicable
to Common Stock as of the last day of any fiscal month immediately preceding
such date, divided by the number of Fully Diluted Outstanding shares of Common
Stock as determined in accordance with GAAP by a firm of independent certified
public accountants of recognized national standing selected by the Company and
reasonably acceptable to the Majority Holders.
"Business Day" shall mean any day that is not a Saturday or Sunday
or a day on which banks are required or permitted to be closed in the
Commonwealth of Pennsylvania.
"Closing Date" shall mean July 31, 1995.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" shall mean (except where the context otherwise
indicates) the Common Stock, par value One Dollar and Sixty-Six and Two-Thirds
Cents ($1.66-2/3) per share, of the Company as constituted on the Closing Date,
and any capital stock into which such Common Stock may thereafter be changed,
and shall also include (i) capital stock of the Company of any other class
(regardless of how denominated) issued to the holders of shares of Common Stock
upon any reclassification thereof which is not preferred as to dividends or
assets over any other class of stock of the Company, and (ii) shares of common
stock of any successor or acquiring corporation (as defined in SECTION 4.4)
received by or distributed to the holders of Common Stock in the circumstances
contemplated by SECTION 4.4.
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property, for
Additional Shares of Common Stock, either immediately or upon the occurrence of
a specified date or a specified event.
"Current Market Price" shall mean, in respect of any share of
Common Stock on any date herein specified on which there shall then be a public
market for the Common Stock, the average of the daily market prices for 30
consecutive Business Days
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commencing 45 days before such date. The daily market price for each such
Business Day shall be (i) the last sale price on such day on the principal stock
exchange on which such Common Stock is then listed or admitted to trading,
(ii) if no sale takes place on such day on any such exchange, the average of the
last reported closing bid and asked prices on such day as officially quoted on
any such exchange, (iii) if the Common Stock is not then listed or admitted to
trading on any stock exchange, (a) the average of the last reported closing bid
and asked prices on such day in the over-the-counter market, as furnished by
NASDAQ or by the National Quotation Bureau, Inc. if not reported on NASDAQ,
(b) if neither such corporation at the time is engaged in the business of
reporting such prices, as furnished by any similar firm then engaged in such
business, or (c) if there is no such firm, as furnished by any member of the
NASD selected mutually by the Majority Holders and the Company or, if they
cannot agree upon such selection, as selected by two such members of the NASD,
one of which shall be selected by the Majority Holders and one of which shall be
selected by the Company. If, on such date, there shall not then be a public
market for the Common Stock, the "Current Market Price" shall mean the higher of
(x) the Book Value per share of Common Stock at such date, and (y) the Appraised
Value per share of Common Stock as of such date.
"Current Warrant Price" shall mean, in respect of a share of Common
Stock at any date herein specified, the price at which a share of Common Stock
may be purchased pursuant to this Warrant on such date, which price shall
initially be $6.75 per share.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Exercise Period" shall mean the period during which this Warrant
is exercisable pursuant to SECTION 2.1.
"Expiration Date" shall mean July 31, 2000.
"Fully Diluted Outstanding" shall mean, when used with reference to
Common Stock, at any date as of which the number of shares thereof is to be
determined, all shares of Common Stock Outstanding at such date and all shares
of Common Stock issuable in respect of this Warrant, and any other options,
warrants or other rights to purchase or receive Common Stock outstanding on such
date.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
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"Holder" shall mean the Person or Persons in whose name the Warrant
set forth herein is registered on the books of the Company maintained for such
purpose.
"Initial Exercise Date" shall mean the earliest to occur of
(i) December 31, 1996, (ii) the occurrence of a payment default under the
Reimbursement Agreement, and (iii) the Repayment Event.
"Lender Warrants" shall mean the Metra Warrant and the Antecedent
Debt Warrant.
"Majority Holders" shall mean the holders of Warrants exercisable
for a number of shares of not less than 66-2/3% of the aggregate number of
shares of Common Stock then purchasable upon exercise of all Warrants, whether
or not then exercisable.
"Metra Warrant" shall mean the Warrant to Purchase Common Stock of
the Company, issued of even date herewith in the form attached as Exhibit D-2
hereto, and any amendments thereto, and all warrants issued upon transfer,
division or combination of, or in substitution for such warrant.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"Other Property" shall have the meaning set forth in SECTION 4.4.
"Outstanding" shall mean, when used with reference to Common Stock,
at any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owned or held by or for the
account of the Company or any Subsidiary thereof, and shall include all shares
issuable in respect of any certificates representing fractional interests in
shares of Common Stock.
"Reimbursement Agreement" shall mean that certain Indemnification
and Reimbursement Agreement, dated as of July 31, 1995, among the Company,
Morrison Knudsen Corporation, an Ohio corporation, Colonial American Casualty
and Surety Company, and Fidelity & Deposit Company of Maryland, as supplemented,
amended, modified or restated from time to time.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof).
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"Public Company" shall have the meaning set forth in SECTION 13.1.
"Registration Rights Agreement" shall mean that certain
Registration Rights Agreement of even date herewith between the Company and the
Holders of this Warrant.
"Repayment Event" shall mean the payment and satisfaction in full
(or the provision in a manner satisfactory to the holder of any "Obligations"
for all liability of the obligor with respect thereto), in accordance with the
terms and provisions of the Reimbursement Agreement and the Agreement of
Indemnity (the "Agreement of Indemnity"), dated as of July 1, 1992 among
Colonial American Casualty and Surety Company, Fidelity and Deposit Company of
Maryland, the Company and the other parties thereto, of all Obligations (as
defined in the Reimbursement Agreement and all obligations of the Company in
respect of transit division performance and/or payment bonds, under the
Agreement of Indemnity including, without limitation, all obligations with
respect to existing contingent indebtedness, or the making of final provisions
for the satisfaction of all such obligations, subject to any limitations on the
foregoing obligations as may be agreed to by the parties pursuant to Section
I.C.3 of the Term Sheet; it being expressly understood that to the extent such
obligations have been fully cash collateralized as contemplated by Section I.C.3
of the Term Sheet, such obligations shall be deemed paid and satisfied in full.
"Repurchase Price" shall have the meaning set forth in
SECTION 14.2.
"Restricted Common Stock" shall mean shares of Common Stock which
are, or which upon their issuance on the exercise of this Warrant would be,
evidenced by a certificate bearing the restrictive legend set forth in
SECTION 9.1(A).
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subsidiary" shall mean, with respect to any Person, any
corporation of which an aggregate of more than 50% of the outstanding stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person and/or one or more Subsidiaries of
such Person.
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"Term Sheet" means that certain Term Sheet of even date herewith
among the Company, Morrison Knudsen Corporation, an Ohio corporation, the
Holders of this Warrant and the other parties thereto.
"Transfer" shall mean any disposition of any Warrant or Warrant
Stock or of any interest in either thereof, which would constitute a sale
thereof within the meaning of the Securities Act.
"Transfer Notice" shall have the meaning set forth in SECTION 9.2.
"Warrants" shall mean this Warrant, and any amendments thereto, and
all warrants issued upon transfer, division or combination of, or in
substitution for, this Warrant. All Warrants shall at all times be identical as
to terms and conditions and date, except as to the number of shares of Common
Stock for which they may be exercised.
"Warrant Price" shall mean an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant to
SECTION 2.1, multiplied by (ii) the Current Warrant Price as of the date of such
exercise.
"Warrant Stock" shall mean the shares of Common Stock purchased by
the holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1 MANNER OF EXERCISE. From and after the Initial Exercise Date and
until 5:00 p.m., Idaho time, on the Expiration Date, Holder may exercise this
Warrant, on any Business Day, for all or any part of the number of shares of
Common Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder
shall deliver to the Company at its principal office at One Morrison Knudsen
Plaza, 720 Park Boulevard, Boise, Idaho 83712, or at the office or agency
designated by the Company pursuant to SECTION 12: (a) a written notice of
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased; (b) payment of the Warrant
Price in the manner specified below; and (c) this Warrant. Such notice shall be
substantially in the form of the subscription form appearing at the end of this
Warrant as EXHIBIT A, duly executed by Holder or its agent or attorney. Upon
receipt thereof, the Company shall, as promptly as practicable, and in any event
within five (5) Business Days thereafter, execute and deliver to Holder a
certificate or certificates representing the aggregate number of shares of
Common Stock issuable upon such exercise. The stock certificate
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or certificates so delivered shall be, to the extent possible, in such
denomination or denominations as such Holder shall request in the notice and
shall be registered in the name of Holder or, subject to SECTION 9, such other
names as shall be designated in the notice. This Warrant shall be deemed to
have been exercised and such certificate or certificates of Common Stock shall
be deemed to have been issued, and Holder or any other Person so designated to
be named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date the notice, together with the payment as
set forth below, and this Warrant are received by the Company as described above
and all taxes, if any, required to be paid by Holder pursuant to SECTION 2.2
prior to the issuance of such shares of Common Stock, have been paid or Holder
has agreed to pay such taxes when finally determined. If this Warrant shall
have been exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Stock, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or, at the request of Holder,
appropriate notation may be made on this Warrant and the same returned to
Holder. Notwithstanding any provision herein to the contrary, the Company shall
not be required to register shares of Warrant Stock in the name of any Person
who acquired this Warrant (or part hereof) or any Warrant Stock otherwise than
in accordance with this Warrant.
Payment of the Warrant Price shall be made at the option of the
Holder (i) by certified or official bank check payable to the order of the
Company, (ii) by cancellation of indebtedness, if any, owed by the Company to
such Holder, (iii) by receiving from the Company the number of shares of Common
Stock equal to (x) the number of shares of Common Stock as to which this Warrant
is being exercised, MINUS (y) the number of shares of Common Stock having a
value, based on the Current Market Price on the date of such exercise, equal to
the Warrant Price, or (iv) by a combination thereof.
2.2 PAYMENT OF TAXES. All shares of Common Stock issuable upon the
exercise of this Warrant pursuant to the terms hereof shall be validly issued,
fully paid, nonassessable, free of liens or encumbrances (except for the
restrictive legend provided for herein) and without any preemptive rights. The
Company shall pay all expenses in connection with, and all taxes and other
governmental charges that may be imposed with respect to, the issue of the
Common Stock hereunder, unless such tax or charge is imposed by law upon Holder,
in which case such taxes or charges shall be paid by Holder. The Company shall
not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issue of any certificate for shares of Common
Stock issuable upon exercise of this Warrant in any name other than that of
Holder, and in such case the Company shall not be required to issue or deliver
any
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stock certificate until such tax or other charge has been paid or the Person
designated to receive such shares has agreed in writing to pay such tax or
charge or it has been established to the satisfaction of the Company that no
such tax or other charge is due.
2.3 CONTINUED VALIDITY. A holder of shares of Common Stock issued upon
the exercise of this Warrant, in whole or in part (other than a holder who
acquires such shares after the same have been publicly sold pursuant to a
Registration Statement under the Securities Act or sold pursuant to Rule 144
thereunder), shall continue to be entitled with respect to such shares to all
rights to which it would have been entitled as Holder under SECTIONS 9, 10, 13,
14 AND 17 of this Warrant. The Company will, at the time of each exercise of
this Warrant, in whole or in part, upon the request of the holder of the shares
of Common Stock issued upon such exercise hereof, acknowledge in writing, in
form reasonably satisfactory to such holder, its continuing obligation to afford
to such holder all such rights; PROVIDED, HOWEVER, that if such holder shall
fail to make any such request, such failure shall not affect the continuing
obligation of the Company to afford to such holder all such rights.
3. TRANSFER, DIVISION AND COMBINATION
3.1 TRANSFER. Subject to compliance with SECTIONS 9 AND 14, transfer
of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
SECTION 2.1 or the office or agency designated by the Company pursuant to
SECTION 12, together with a written assignment of this Warrant substantially in
the form of EXHIBIT B hereto duly executed by Holder or its agent or attorney
and if such transfer is not to be made pursuant to SECTION 14, funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall, subject to
SECTION 9, execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be canceled. A
Warrant, if properly assigned in compliance with SECTION 9, may be exercised by
a new Holder for the purchase of shares of Common Stock without having a new
Warrant issued. If requested by the Company, a new Holder shall acknowledge in
writing, in form reasonably satisfactory to the Company, such Holder's
continuing obligations under SECTIONS 9 AND 14 of this Warrant.
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3.2 DIVISION AND COMBINATION. Subject to SECTION 9, this Warrant may
be divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney. Subject to compliance with
SECTION 3.1 and with SECTION 9, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 EXPENSES. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
SECTION 3.
3.4 MAINTENANCE OF BOOKS. The Company agrees to maintain, at its
aforesaid office or agency, books for the registration, and the registration of
transfer, of the Warrants.
4. ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is
exercisable, or the price at which such shares may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as set forth in
this SECTION 4. The Company shall give each Holder notice of any event
described below which requires an adjustment pursuant to this SECTION 4 at the
time of such event.
4.1 PREPAYMENT OF OBLIGATIONS UNDER OVERRIDE AGREEMENT. The number of
shares of Common Stock for which this Warrant is exercisable immediately after
the occurrence of a Repayment Event shall be adjusted as follows:
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If the Repayment Event occurs Then the number of shares of Common Stock
during the following period for which this Warrant is exercisable
immediately prior to such event is reduced
by
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Closing Date through June 30, 100%
1996
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July 1, 1996 through 50%
December 31, 1996
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4.2 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time the
Company shall:
(a) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend
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payable in, or other distribution of, Additional Shares of Common Stock;
(b) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be entitled to
receive after the happening of such event, and (ii) the Current Warrant Price
shall be adjusted to equal (A) the Current Warrant Price in effect immediately
prior to the occurrence of such event, multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to the
adjustment divided by (B) the number of shares for which this Warrant is
exercisable immediately after such adjustment.
4.3 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the making of adjustments pursuant
to this SECTION 4, of the number of shares of Common Stock for which this
Warrant is exercisable:
(a) WHEN ADJUSTMENTS TO BE MADE. The adjustments required by this
SECTION 4 shall be made whenever and as often as any specified event requiring
an adjustment shall occur, except that any adjustment of the number of shares of
Common Stock for which this Warrant is exercisable that would otherwise be
required may be postponed (except in the case of an adjustment pursuant to
SECTION 4.1 or a subdivision or combination of shares of the Common Stock, as
provided for in SECTION 4.2) up to, but not beyond the date of exercise of this
Warrant (or date of repurchase by the Company under SECTION 14) if such
adjustment either by itself or with other adjustments not previously made adds
or subtracts less than one percent (1%) of the shares of Common Stock for which
this Warrant is exercisable immediately prior to the making of such adjustment.
Any adjustment representing a change of less than such minimum amount (except as
aforesaid) which is postponed shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this SECTION 4 and not
previously made, would result in a minimum adjustment or on the date of exercise
or repurchase. For the purpose of any adjustment, any specified event shall be
deemed to have occurred at the close of business on the date of its occurrence.
10
(b) FRACTIONAL INTERESTS. In computing adjustments under this
SECTION 4, fractional interests in Common Stock shall be taken into account to
the nearest 1/10th of a share.
(c) WHEN ADJUSTMENT NOT REQUIRED. If the Company shall take a
record of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution and shall, thereafter and before the
distribution to stockholders thereof, legally abandon its plan to pay or deliver
such dividend or distribution, then thereafter no adjustment shall be required
by reason of the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
4.4 REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR
DISPOSITION OF ASSETS. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation), or sell,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then each Holder shall have the right thereafter to receive,
upon exercise of such Holder's Warrant, the number of shares of common stock of
the successor or acquiring corporation and Other Property receivable upon or as
a result of such reorganization, reclassification, merger, consolidation or
disposition of assets by a holder of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such event. In case of
any such reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation shall expressly assume the due
and punctual observance and performance of each and every covenant and condition
of this Warrant to be performed and observed by the Company and all the
obligations and liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined by resolution of the Board of Directors of the
Company) in order to provide for adjustments of the shares of Common Stock for
which this Warrant is exercisable, which adjustments shall be as nearly
equivalent as practicable to the adjustments provided for in this SECTION 4.
For purposes of this SECTION 4.4, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or rights on liquidation over any other class of stock
of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities which
are
11
convertible into or exchangeable for any such stock, either immediately or upon
a specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this SECTION 4.4 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or dispositions of assets.
5. NOTICES TO WARRANT HOLDERS
5.1 NOTICE OF ADJUSTMENTS. Whenever the number of shares of Common
Stock for which this Warrant is exercisable, or whenever the price at which a
share of such Common Stock may be purchased upon exercise of the Warrants, shall
be adjusted pursuant to SECTION 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated, specifying the number of shares of
Common Stock for which this Warrant is exercisable and (if such adjustment was
made pursuant to SECTION 4.4) describing the number and kind of any other shares
of stock or Other Property for which this Warrant is exercisable, and any change
in the purchase price or prices thereof, after giving effect to such adjustment
or change. The Company shall promptly cause a signed copy of such certificate
to be delivered to each Holder in accordance with SECTION 17.2. The Company
shall keep at its office or agency designated pursuant to SECTION 12 copies of
all such certificates and cause the same to be available for inspection at said
office during normal business hours by any Holder or any prospective purchaser
of a Warrant designated by a Holder thereof.
5.2 NOTICE OF CERTAIN CORPORATE ACTION. The Holder shall be entitled
to the same rights to receive notice of corporate action as any holder of Common
Stock.
6. NO IMPAIRMENT
The Company shall not by any action avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant above
the amount payable therefor upon such exercise immediately prior to such
increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock, upon the exercise of this Warrant, and
(c) use its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory
12
body having jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant.
Upon the request of Holder, the Company will at any time during the
period this Warrant is outstanding acknowledge in writing, in form reasonably
satisfactory to Holder, the continuing validity of this Warrant and the
obligations of the Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY; PREFERRED STOCK
From and after the Closing Date, the Company shall at all times reserve
and keep available for issuance upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All shares of Common Stock
which shall be so issuable, when issued upon exercise of any Warrant and payment
therefor in accordance with the terms of such Warrant, shall be duly and validly
issued and fully paid and nonassessable, and not subject to preemptive rights.
Before taking any action which would cause an adjustment reducing the
Current Warrant Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of the Warrants, the Company shall take any
corporate action which may be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of such Common Stock at
such adjusted Current Warrant Price.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
If any shares of Common Stock required to be reserved for issuance upon
exercise of Warrants require registration or qualification with any governmental
authority under any federal or state law (otherwise than as provided in
SECTION 9) before such shares may be so issued, the Company will in good faith
and as expeditiously as possible and at its expense endeavor to cause such
shares to be duly registered or qualified.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to the
holders of its Common Stock with respect to which any provision of SECTION 4
refers to the taking of a record of such holders, the Company will in each such
case take such a
13
record and will take such record as of the close of business on a Business Day.
The Company will not at any time, except upon dissolution, liquidation or
winding up of the Company, close its stock transfer books or Warrant transfer
books so as to result in preventing or delaying the exercise or transfer of any
Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
The Warrants and the Warrant Stock shall not be transferred, hypothecated
or assigned before satisfaction of the conditions specified in this SECTION 9,
which conditions are intended to ensure compliance with the provisions of the
Securities Act and state law, with respect to the Transfer of any Warrant or any
Warrant Stock. Holder, by acceptance of this Warrant, agrees to be bound by the
provisions of this SECTION 9.
9.1 RESTRICTIVE LEGEND.
(a) Except as otherwise provided in this SECTION 9, each
certificate for Warrant Stock initially issued upon the exercise of this
Warrant, and each certificate for Warrant Stock issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and are
subject to the conditions specified in a certain Warrant dated as
of August ___, 1995, originally issued by Morrison Knudsen
Corporation. No transfer of the shares represented by this
certificate shall be valid or effective until such conditions and
any requirements of federal and state law have been fulfilled. A
copy of the form of said Warrant is on file with the Secretary of
Morrison Knudsen Corporation. The holder of this certificate, by
acceptance of this certificate, agrees to be bound by the
provisions of such Warrant."
(b) Except as otherwise provided in this SECTION 9, each Warrant
shall be stamped or otherwise imprinted with a legend in substantially the
following form:
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, and may not be
transferred in violation of such Act or state law, the rules and
regulations thereunder or the provisions of this Warrant."
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9.2 NOTICE OF PROPOSED TRANSFERS; REQUESTS FOR REGISTRATION. Prior to
any Transfer or attempted Transfer of any Warrants or any shares of Restricted
Common Stock, the holder of such Warrants or Restricted Common Stock shall give
10 days prior written notice (a "Transfer Notice") to the Company of such
holder's intention to effect such Transfer, describing the manner and
circumstances of the proposed Transfer, and shall deliver to the Company a
certificate of such holder representing and warranting that the proposed
Transfer of such Warrants or such Restricted Common Stock may be effected
without registration under the Securities Act. After receipt of the Transfer
Notice and certificate, the Company shall, within five days thereof, so notify
the holder of such Warrants or such Restricted Common Stock and such holder
shall thereupon be entitled to Transfer such Warrants or such Restricted Common
Stock, in accordance with the terms of the Transfer Notice. Each certificate,
if any, evidencing such shares of Restricted Common Stock issued upon such
Transfer shall bear the restrictive legend set forth in SECTION 9.1(a), and each
Warrant issued upon such Transfer shall bear the restrictive legend set forth in
SECTION 9.1(b). The holder of the Warrants or the Restricted Common Stock, as
the case may be, giving the Transfer Notice shall not be entitled to transfer
and shall not transfer such Warrants or such Restricted Common Stock until
receipt of notice from the Company under this SECTION 9.2(a).
The holders of Warrants and Warrant Stock shall have the right to request
registration of such Warrant Stock pursuant to and in accordance with the terms
of the Registration Rights Agreement.
9.3 TERMINATION OF RESTRICTIONS. Notwithstanding the foregoing
provisions of SECTION 9, the restrictions imposed by this SECTION 9 upon the
transferability of the Warrants, the Warrant Stock and the Restricted Common
Stock (or Common Stock issuable upon the exercise of the Warrants) and the
legend requirements of SECTION 9.1 shall terminate as to any particular Warrant
or share of Warrant Stock or Restricted Common Stock (or Common Stock issuable
upon the exercise of the Warrants) (i) when and so long as such security shall
have been effectively registered under the Securities Act and disposed of
pursuant thereto or (ii) when the Company shall have received an opinion of
counsel reasonably satisfactory to it that such legend is not required in order
to ensure compliance with the Securities Act. Whenever the restrictions imposed
by this SECTION 9 shall terminate as to this Warrant, as hereinabove provided,
the Holder hereof shall be entitled to receive from the Company, at the expense
of the Company, a new Warrant bearing the following legend in place of the
restrictive legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN WARRANT
CONTAINED IN SECTION 9 HEREOF TERMINATED ON , 19 , AND
ARE OF NO FURTHER FORCE AND EFFECT."
15
All Warrants thereafter issued upon registration of transfer, division or
combination of, or in substitution for, any Warrant or Warrants entitled to bear
such legend shall have a similar legend endorsed thereon. Whenever the
restrictions imposed by this SECTION 9 shall terminate as to any share of
Restricted Common Stock, as hereinabove provided, the holder thereof shall be
entitled to receive from the Company, at the Company's expense, a new
certificate representing such Common Stock not bearing the restrictive legend
set forth in SECTION 9.1(a).
9.4 LISTING ON SECURITIES EXCHANGE. So long as the Company shall list
any shares of Common Stock on any securities exchange, it will, at its expense,
list thereon, maintain and, when necessary, increase such listing of, all shares
of Common Stock issued or, to the extent permissible under the applicable
securities exchange rules, issuable upon the exercise of this Warrant, so long
as any shares of Common Stock shall be so listed during the Exercise Period.
10. SUPPLYING INFORMATION
The Company shall cooperate with each holder of a Warrant or Restricted
Common Stock in supplying such information as may be reasonably necessary for
such holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any Warrant or Restricted
Common Stock.
11. LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity reasonably satisfactory to it, and in
case of mutilation upon surrender and cancellation hereof, the Company will
execute and deliver in lieu hereof a new Warrant of like tenor to such Holder;
PROVIDED, in the case of mutilation, no indemnity shall be required if this
Warrant in identifiable form is surrendered to the Company for cancellation.
12. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company shall
maintain an office or agency (which may be the principal executive offices of
the Company) where the Warrants may be presented for exercise, registration of
transfer, division or combination as provided in this Warrant. The Company
shall notify Holder in writing prior to any change of the address of the office
at which the Warrants may be presented.
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13. FINANCIAL AND BUSINESS INFORMATION
13.1 FILINGS. So long as the Company is a "Public Company" (as
hereinafter defined), the Company will file with the Commission on or before the
due date all regular or periodic reports required to be filed pursuant to the
Exchange Act, and will deliver to the Holder, promptly upon its becoming
available, one copy of each report, notice or proxy statement sent by the
Company to its shareholders generally, and one copy of each regular or periodic
report (including, without limitation, reports on Form 8-K) pursuant to the
Exchange Act or any registration statement, prospectus or written communication
(other than transmittal letters and other communications that are not publicly
available) pursuant to the Securities Act, filed by the Company with (i) the
Commission or (ii) any securities exchange on which shares of the Common Stock
are listed.
For purposes of this SECTION 13, the term "Public Company" shall
mean a company (i) that is subject to the reporting requirements of
Section 15(d) of the Exchange Act, or (ii) any of whose securities are
registered pursuant to Section 12(b) or 12(g) of the Exchange Act.
13.2 QUARTERLY INFORMATION. During any period in which the Company is
not a Public Company, as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, the Company will deliver to the Agent a consolidated balance sheet of
the Company and its consolidated Subsidiaries as of the end of such quarter and
the related consolidated statements of income and cash flows for such quarter
and for the portion of the Company's fiscal year ended at the end of such
quarter, setting forth in the case of such income and cash flows in comparative
form the figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP, and consistency by the chief
financial officer, controller or treasurer of the Company.
13.3 ANNUAL INFORMATION. During any period in which the Company is not
a Public Company, as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, the Company will deliver to the Agent a
consolidated balance sheet of the Company and its consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated statements of
income, retained earnings and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Commission by Deloitte & Touche or
other independent public accountants of nationally recognized standing, together
with an unaudited annual report prepared on a consolidating basis in conformity
with GAAP.
17
14. THE COMPANY'S REPURCHASE OF THE WARRANT
14.1 OPTION TO REPURCHASE WARRANT. From time to time on or after the
Initial Exercise Date and until the Expiration Date, the Company shall have the
right, upon not less than thirty (30) days prior written notice to any Holder,
to repurchase from such Holder, from any source of funds legally available
therefor, on the date and in the manner set forth in SECTION 14.2, all or any
part of the Warrant then held by such Holder for an amount determined by
multiplying (x) the number of shares of Common Stock subject to such Warrant or
portion thereof being repurchased, by (y) the difference between (i) 110% of the
higher of the Current Market Price per share of Common Stock and the Current
Warrant Price per share of Common Stock as of the date of such notice, and
(ii) the Current Warrant Price per share of Common Stock as of the date of such
notice; PROVIDED, HOWEVER, that nothing herein shall preclude the exercise by
Holder of any portion of this Warrant exercisable at any time prior to such
repurchase.
14.2 DETERMINATION AND PAYMENT OF REPURCHASE PRICE.
(a) The purchase price for any repurchase pursuant to this
SECTION 14 (the "Repurchase Price") shall be determined within ten (10) days of
the date of the repurchase notice given by the Company pursuant to SECTION 14.1,
and shall be payable in cash from any source of funds legally available therefor
within ten (10) days following the date of such determination of the Repurchase
Price. On the date of any repurchase of this Warrant pursuant to this
SECTION 14, each Holder shall assign to the Company such Holder's Warrant or
portion thereof being repurchased, without any representations (other than a
representation that such Holder owns such Warrant free and clear of any liens,
pledges or encumbrances), by the surrender of such Holder's Warrant at the
principal office of the Company referred to in SECTION 2.1 against payment
therefor of the Repurchase Price by, at the option of such Holder, and subject
to the immediately following sentence, (i) wire transfer to an account in a bank
located in the United States designated by such Holder for such purpose or
(ii) a certified or official bank check drawn on a member of the New York
Clearing House payable to the order of such Holder. If less than all of any
Holder's Warrant is being repurchased, the Company shall, pursuant to SECTION 3,
cancel such Warrant and issue in the name of, and deliver to, such Holder a new
Warrant for the portion not being repurchased.
(b) Each Holder of Warrants shall have the right at any time to
object to the determination of the Repurchase Price pursuant to this SECTION 14
by specifying in writing to the Company the nature of its objection and, unless
such objection is resolved by agreement of the Company and such Holder, the
Company and such Holder shall each have the right to subject the disputed
determination to separate firms of independent accountants of recognized
national standing for a joint resolution of the
18
objection of such Holder (which firms of independent accountants may, in either
case, be the firms of accountants regularly retained by the Company or such
Holder). If such firms cannot jointly resolve the objection of such Holder,
then, unless otherwise directed by agreement of the Company and such Holder,
such firms shall in their sole discretion choose another firm of independent
certified public accountants of recognized national standing, which is not the
regular auditor of such Holder or the Company, which firm shall resolve such
objection. In either case, for purposes hereof the determination so made shall
be conclusive and binding on the Company, such Holder and all Persons claiming
under or through any of them, and any adjustment in the determination of the
Repurchase Price per share of Common Stock resulting from such determination
shall be made. The cost of any such determination shall be borne by the Company
if it results in an increase of the aggregate Repurchase Price for all shares of
Common Stock issuable upon the exercise hereof and by such Holder if it results
in no adjustment or a decrease of the aggregate Repurchase Price for all shares
of Common Stock issuable upon the exercise hereof.
(c) Any repurchase by the Company of all or any portion of the
Warrant pursuant to SECTION 14.1 which is delayed by (1) the failure of the
Company to determine the Repurchase Price within the time periods required in
SECTION 14.3(a) or (2) an objection by any Holder of the Warrant to any such
determination pursuant to SECTION 14.3(b) shall be consummated within ten (10)
days after, as the case may be, the determination of the Repurchase Price or the
resolution of such objection.
(d) In the event that the determination of the Repurchase Price
requires an opinion from an investment banking firm or accounting firm, all
costs and fees associated therewith shall, except to the extent otherwise
provided in SECTION 14.3(b) above, be paid by the Company.
14.3 PRO RATA REPURCHASE OF WARRANTS. Notwithstanding anything to the
contrary contained in this SECTION 14, any repurchase by the Company of this
Warrant or any portion thereof shall be made pro rata and on the same terms with
respect to all Warrants and all Lender Warrants then outstanding, and any
obligation of Holder pursuant to this SECTION 14 to sell this Warrant or any
portion thereof to the Company is conditioned upon the Company's compliance with
such requirement.
15. APPRAISAL
If required under this Warrant, the determination of the Appraised Value
per share of Common Stock shall be made by an investment banking firm of
nationally recognized standing selected by the Company and acceptable to the
Majority Holders. If the investment banking firm selected by the Company is not
acceptable to the Majority Holders and the Company and the
19
Majority Holders cannot agree on a mutually acceptable investment banking firm,
then the Majority Holders and the Company shall each choose one such investment
banking firm and the respective chosen firms shall agree on another investment
banking firm which shall make the determination. The Company shall retain, at
its sole cost, such investment banking firms as may be necessary for the
determination of Appraised Value required by the terms of this Warrant.
16. LIMITATION OF LIABILITY
No provision hereof (including, without limitation, any of the provisions
under Section 7), in the absence of affirmative action by Holder to purchase
shares of Common Stock, and no enumeration herein of the rights or privileges of
Holder hereof, shall give rise to any liability of such Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such
liability is asserted by the Company, or by creditors of the Company.
17. MISCELLANEOUS
17.1 NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies.
If the Company fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the Company shall pay
to Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys' fees, including those of
appellate proceedings, incurred by Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
17.2 NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration or other communication hereunder to be made pursuant to the terms of
this Warrant shall be in writing (including bank wire, facsimile transmission or
similar writing) and shall be addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its last known
address or facsimile transmission number appearing on the books of the Company
maintained for such purpose.
20
(b) If to the Company at:
Morrison Knudsen Corporation
One Morrison Knudsen Plaza
720 Park Boulevard
Boise, Idaho 83712
Attention: Douglas L. Brigham
Facsimile: (208) 386-5922
with a copy to:
Jones, Day, Reavis & Pogue
77 West Wacker Drive
Chicago, Illinois 60601-1692
Attention: David S. Kurtz, Esq.
Facsimile: (312) 782-8585
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Each such notice, demand,
request, consent, approval, declaration, delivery other communication shall be
effective, (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this SECTION 17.2 and confirmation of receipt is
received, (ii) if given by mail, seventy-two (72) hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address
specified in this SECTION 17.2. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration, delivery or other
communication to the person designated above to receive a copy shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration, delivery or other communication.
17.3 INDEMNIFICATION. In addition to the indemnities provided in the
Registration Rights Agreement, the Company agrees to indemnify and hold harmless
Holder, its officers, directors, employees, agents, and attorneys from and
against any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses and disbursements of
any kind which may be imposed upon, incurred by or asserted against Holder
relating to or arising out of (i) Holder's exercise of this Warrant and/or
ownership of any shares of Warrant Stock issued in consequence thereof, or
(ii) any litigation to which Holder is made a party in its capacity as a
stockholder or warrant holder of the Company; PROVIDED, HOWEVER, that the
Company will not be liable hereunder to the extent that any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys' fees, expenses or disbursements are found in a final non-
appealable judgment by a court to have resulted from either (i) Holder's gross
negligence or willful misconduct, (ii) actions or omissions taken or not taken
by Holder in any capacity other
21
than as a stockholder or warrant holder of the Company, or (iii) any violation
of federal or state securities laws by Holder, which is not caused by any action
or inaction of the Company.
17.4 REMEDIES. Each holder of Warrants and Warrant Stock, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
SECTIONS 9, 10, 13 AND 14 of this Warrant. Each party agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of SECTION 9, 10, 13 OR 14 of this Warrant and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
17.5 SUCCESSORS AND ASSIGNS. Subject to the provisions of SECTIONS 3.1
AND 9, this Warrant and the rights evidenced hereby shall inure to the benefit
of and be binding upon the successors of the Company and the successors and
assigns of Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
17.6 AMENDMENT. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Majority Holders; PROVIDED, HOWEVER, that no such Warrant may be
modified or amended to reduce the number of shares of Common Stock for which
such Warrant is exercisable (including, without limitation, by way of amendment
of SECTION 4.1), or to increase the price at which such shares may be purchased
upon exercise of such Warrant (before giving effect to any adjustment as
provided therein), or to modify the time period during which such Warrant may be
exercised without the prior written consent of the Holder thereof.
17.7 SEVERABILITY. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
17.8 HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
17.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REFERENCE
TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
22
17.10 CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY CONSENTS
TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
BALTIMORE, MARYLAND IN ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS WARRANT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR
THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE COMPANY HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS IN ANY
ACTION, CLAIM OR PROCEEDING BROUGHT BY HOLDER OR ANY HOLDER OF WARRANT STOCK IN
CONNECTION WITH THIS WARRANT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS, ON BEHALF OF ITSELF AND ITS
PROPERTY, IN THE MANNER SPECIFIED IN SECTION 17.2 (PROVIDED TELECOPY NOTICES MAY
NOT BE USED FOR THIS PURPOSE). NOTHING IN THIS SECTION 17.10 SHALL AFFECT THE
RIGHT OF HOLDER OR ANY HOLDER OF WARRANT STOCK TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF HOLDER OR ANY HOLDER OF
WARRANT STOCK TO BRING ANY ACTION OR PROCEEDING AGAINST THE COMPANY OR ITS
PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS.
17.11 MUTUAL WAIVER OF JURY TRIAL. HOLDER, EACH HOLDER OF WARRANT STOCK
AND THE COMPANY EACH HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS WARRANT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and its corporate seal to be impressed hereon and attested by its
Secretary or an Assistant Secretary.
Dated: August ___, 1995
MORRISON KNUDSEN CORPORATION
By:__________________________
Name:
Title:
Attest:
_________________________
Secretary
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EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of the attached Warrant irrevocably
exercises such Warrant for the purchase of ____ Shares of Common Stock of
Morrison Knudsen Corporation, and herewith makes payment therefor, all at the
price and on the terms and conditions specified in such Warrant and requests
that certificates for the shares of Common Stock hereby purchased (and/or any
securities or other property issuable upon such exercise) be issued in the name
of and delivered to ________________ whose address is ____________ and, if such
shares of Common Stock (or other securities or property) shall not include all
of the shares of Common Stock issuable as provided in such Warrant, that a new
Warrant of like tenor and date for the balance of the shares of Common Stock
issuable hereunder be delivered to the undersigned.
___________________________________
(Name of Registered Owner)
___________________________________
(Signature of Registered Owner)
___________________________________
(Street Address)
___________________________________
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of the attached
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under such Warrant, with respect to the number of
shares of Common Stock set forth below:
NAME AND ADDRESS OF ASSIGNEE NO. OF SHARES OF
COMMON STOCK
and does hereby irrevocably constitute and appoint _____________
attorney-in-fact to register such transfer on the books of Morrison Knudsen
Corporation maintained for the purpose, with full power of substitution in the
premises.
Dated: Print Name:
--------------- --------------------------------
Signature:
--------------------------------
Witness:
--------------------------------
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
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