Exhibit 4.7
WARRANT
To Purchase Common Stock of
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
No. of Shares of Common Stock: 4,613,695
Issued August ___, 1995
TABLE OF CONTENTS
1. DEFINITIONS.............................................................. 1
2. EXERCISE OF WARRANT...................................................... 6
2.1 Manner of Exercise.............................................. 6
2.2 Payment of Taxes................................................ 7
2.3 Continued Validity.............................................. 7
3. TRANSFER, DIVISION AND COMBINATION....................................... 8
3.1 Transfer........................................................ 8
3.2 Division and Combination........................................ 8
3.3 Expenses........................................................ 8
3.4 Maintenance of Books............................................ 8
4. ADJUSTMENTS............................................................. 9
4.1 Prepayment of Obligations under Override Agreement.............. 9
4.2 Stock Dividends, Subdivisions and Combinations.................. 9
4.3 Other Provisions Applicable to Adjustments Under This Section... 10
4.4 Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets........................................... 10
5. NOTICES TO WARRANT HOLDERS.............................................. 11
5.1 Notice of Adjustments........................................... 11
5.2 Notice of Certain Corporate Action.............................. 12
6. NO IMPAIRMENT........................................................... 12
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH
OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY; PREFERRED STOCK.............. 12
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS...................... 13
9. RESTRICTIONS ON TRANSFERABILITY......................................... 13
9.1 Restrictive Legend.............................................. 14
9.2 Notice of Proposed Transfers; Requests for Registration......... 14
9.3 Termination of Restrictions..................................... 15
9.4 Listing on Securities Exchange.................................. 15
10. SUPPLYING INFORMATION................................................... 16
11. LOSS OR MUTILATION...................................................... 16
12. OFFICE OF THE COMPANY................................................... 16
13. FINANCIAL AND BUSINESS INFORMATION...................................... 16
13.1 Filings......................................................... 16
13.2 Quarterly Information........................................... 17
13.3 Annual Information.............................................. 17
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14. THE COMPANY'S REPURCHASE OF THE WARRANT................................. 17
14.1 Option to Repurchase Warrant.................................... 17
14.2 Determination and Payment of Repurchase Price................... 18
14.3 Pro Rata Repurchase of Warrants................................. 19
15. APPRAISAL............................................................... 19
16. LIMITATION OF LIABILITY................................................. 19
17. MISCELLANEOUS........................................................... 20
17.1 Nonwaiver and Expenses.......................................... 20
17.2 Notice Generally................................................ 20
17.4 Remedies........................................................ 21
17.5 Successors and Assigns.......................................... 21
17.6 Amendment....................................................... 22
17.7 Severability.................................................... 22
17.8 Headings........................................................ 22
17.9 GOVERNING LAW................................................... 22
................................................................ 22
17.10 CONSENT TO JURISDICTION......................................... 22
17.11 MUTUAL WAIVER OF JURY TRIAL..................................... 23
ii
EXHIBITS
EXHIBIT A Subscription Form
EXHIBIT B Assignment Form
EXHIBIT C Schedule of Holders of Metra Warrants as of Closing Date
iii
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: 4,613,695
WARRANT
To Purchase Common Stock of
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
THIS IS TO CERTIFY THAT EACH OF THE RESPECTIVE PERSONS LISTED ON
EXHIBIT C HERETO, 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"), the respective number of
shares of Common Stock (as hereinafter defined and subject to adjustment as
provided herein) set forth opposite its name on EXHIBIT C hereto, 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
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 to the Override Agreement, 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
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giving effect to any discount for (i) a minority interest or (ii) any lack of
liquidity of the Common Stock or the fact that 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
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shall then be a public market for the Common Stock, the average of the daily
market prices for 30 consecutive Business Days 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.
"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 Section 9.1(a)
of the Override Agreement, and in the case of a payment default NOT involving
the payment of principal, interest, Letter of Credit Fees (as defined in the
Override Agreement) or Facility Fees (as defined in the Override Agreement) the
continuance of such default beyond two (2) Business Days after written notice
thereof to the Company, and (iii) the Repayment Event.
"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.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"Obligations" shall have the meaning set forth in the Override
Agreement.
"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.
"Override Agreement" shall mean that certain Override Agreement
of even date herewith among the Company, Morrison Knudsen Corporation, an Ohio
corporation, the banks and other financial institutions that are parties
thereto, and Mellon Bank, N.A., as agent, 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).
"Public Company" shall have the meaning set forth in SECTION
13.1.
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"Registration Rights Agreement" shall mean that certain
Registration Rights Agreement of even date herewith between the Company, the
Holders of this Warrant and the holders of the Antecedent Debt 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 Override Agreement, of all Obligations (including, without
limitation, all Obligations with respect to Existing Contingent Indebtedness and
the Metra Letter of Credit (each as defined in the Override Agreement), or the
making of final provisions for the satisfaction of all Obligations but excluding
any contingent indemnity obligations unless such obligations are due or
payable).
"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.
"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.
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"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 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
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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 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
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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.
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.
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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. If the
Repayment Event occurs on or prior to the earlier of the Initial Exercise Date
and September 30, 1996, then the number of shares of Common Stock for which this
Warrant is exercisable immediately after the occurrence of such event shall be
adjusted as follows:
- -------------------------------------------------------------------------------
If the Repayment Event occurs Then the number of shares of
during the following period Common Stock for which this
Warrant is exercisable
immediately prior
to such event is reduced by
- -------------------------------------------------------------------------------
Closing Date through June 30, 100%
1996
- -------------------------------------------------------------------------------
July 1, 1996 through 50%
December 31, 1996
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
January 1, 1997 through 25%
June 30, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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 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
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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.
(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
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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 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
11
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 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
12
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 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.
13
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."
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
14
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."
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.
15
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.
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.
16
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.
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
17
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 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
18
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 Antecedent Debt 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 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
19
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.
(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
20
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 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.
21
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), 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; AND
PROVIDED FURTHER, that no such Warrant may be modified or amended unless the
"Majority Holders" as defined under the Antecedent Debt Warrant have agreed to
the same modification or amendment of the Antecedent Debt Warrant.
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 COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
17.10 CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY
CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
PITTSBURGH, PENNSYLVANIA 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.
22
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
23
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.
24
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.
25
EXHIBIT C to Metra Warrant
METRA WARRANT ALLOCATION
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
BANK SHARES
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
Bank of America National Trust and Savings Association 364,239
- ---------------------------------------------------------------------------
Bank of Montreal 242,826
- ---------------------------------------------------------------------------
The Bank of Nova Scotia 242,826
- ---------------------------------------------------------------------------
The Bank of Tokyo, Ltd., Seattle Branch 315,674
- ---------------------------------------------------------------------------
Banque Nationale de Paris 291,391
- ---------------------------------------------------------------------------
Banque Paribas 315,674
- ---------------------------------------------------------------------------
CIBC Inc. 315,674
- ---------------------------------------------------------------------------
Credit Lyonnais, New York Branch 315,674
- ---------------------------------------------------------------------------
The Hongkong and Shanghai Banking Corporation Limited 242,826
- ---------------------------------------------------------------------------
The Long-Term Credit Bank of Japan, Ltd., 315,674
Los Angeles Agency
- ---------------------------------------------------------------------------
National Westminster Bank PLC 242,826
- ---------------------------------------------------------------------------
Royal Bank of Canada 242,826
- ---------------------------------------------------------------------------
San Paolo Bank SpA 534,217
- ---------------------------------------------------------------------------
Union Bank of Switzerland 315,674
- ---------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, 315,674
New York and Cayman Islands Branches
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
TOTAL 4,613,695
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------