Exhibit 4.21
WARRANT NO. W-2 2,245,106 SHARES OF COMMON STOCK,
SUBJECT TO ADJUSTMENT
AMENDED AND RESTATED WARRANT CERTIFICATE
CHAMPION ENTERPRISES, INC.
Champion Enterprises, Inc. (the "Issuer"), a Michigan
corporation, for value received, hereby certifies that Fletcher International,
Ltd., or registered assigns, is entitled to purchase from the Issuer the
Issuable Number of duly authorized, validly issued, fully paid and
non-assessable shares (subject to the net exercise provisions and the
adjustments contained in this Amended and Restated Warrant (the "Warrant") and
in the Agreement between Fletcher International, Ltd. and the Issuer dated as of
March 29, 2002 (the "Main Agreement")) of common stock, par value one dollar
($1.00) per share (the "Common Stock") of the Issuer on a net exercise basis as
set forth in Section 1.1(a) at any time or from time to time prior to 6:30 p.m.,
New York City time, on April 2, 2009 (or such later date as may be determined
pursuant to the terms hereof) (the "Termination Date"), all subject to the
terms, conditions and adjustments set forth below in this Warrant.
This Warrant amends and restates that certain warrant that was
issued on April 2, 2002 (the "Issuance Date") pursuant to the Main Agreement, is
subject to the terms and conditions thereof and the holder of this Warrant (the
"Holder") is subject to certain restrictions set forth in the Main Agreement and
shall be entitled to certain rights and privileges set forth in the Main
Agreement. This Warrant is the Warrant referred to as the "Warrant" in the Main
Agreement. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Main Agreement. A copy of the Main
Agreement may be obtained by the registered Holder hereof upon written request
to the Issuer.
1. Exercise of Warrant.
1.1 Manner of Exercise. This Warrant may be exercised by the
Holder hereof, in whole or in part, but not for less than 250,000 shares of
Common Stock appearing on the face of this Warrant at a time (or such lesser
number of shares which may then constitute the maximum number purchasable), at
any time and from time to time, on any Business Day, by facsimile, mail or
overnight courier delivery of a notice in substantially the form attached to
this Warrant (or a reasonable facsimile thereof) duly executed by such Holder (a
"Warrant Exercise Notice"). The closing of each exercise shall take place (i) on
the second (2nd) Business Day following, and excluding, the date the Warrant
Exercise Notice is delivered (the "Warrant Notice Date"), (ii) at the option of
the Holder, such later date as the conditions set forth in Section 1.2 have been
waived or satisfied or (iii) any other date upon which the exercising Holder and
the Issuer mutually agree (each, a "Warrant Closing Date") unless the Holder
shall have withdrawn the Warrant Exercise Notice prior to the closing of such
exercise on such Warrant Closing Date by written notice to the Issuer regardless
of whether such conditions have been waived or satisfied.
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Exhibit 4.21
(a) This Warrant may be exercised on a net exercise basis
only. The number of shares of Common Stock that the Issuer shall issue
shall be computed as of the date of the Warrant Exercise Notice using
the following formula:
X = (N*Y/B)*(A-B)/A
Where:
X = the number of shares to be issued to the
Holder hereof;
N = the number of shares on the face of this
Warrant, not to exceed in the aggregate the
Issuable Number, for which this Warrant is
being exercised as specified in the Warrant
Exercise Notice;
Y = the Stock Purchase Price;
A = the Daily Market Price of one share of
the Common Stock issuable at the date of
such calculation; and
B = the Warrant Price (as defined below) (as
adjusted to the date of such calculation).
1.2 Conditions to Closing. It shall be a condition of the
exercising Holder's obligation to close on each Warrant Closing Date that each
of the following are satisfied, unless waived by such Holder:
(a) (1) the representations and warranties made by the
Issuer in the Main Agreement shall be true and correct as of such
Warrant Closing Date, except those representations and warranties that
address matters only as of a particular date, which shall be true and
correct as of such date; (2) the Issuer shall have complied fully with
all of the covenants and agreements in the Main Agreement; (3) all
shares to be issued upon such exercise shall be registered under the
Securities Act in accordance with the terms of the Main Agreement,
shall be freely tradable Registered Common Stock and shall be duly
listed and admitted to trading on the New York Stock Exchange, American
Stock Exchange or Nasdaq National Market System in accordance with the
terms of the Main Agreement (unless, with respect to clause (3) only,
the Holder expressly consents in writing to the issuance of
unregistered Common Stock for a portion or all of the shares to be
issued upon such exercise; in such case, the Issuer shall use its best
efforts to cause to be satisfied this condition in clause (3) for the
balance of shares to be issued upon such exercise); and such Holder
shall have received a certificate of the Chief Executive Officer or the
Chief Financial Officer of the Issuer dated such date and to the effect
of clauses (1), (2) and (3).
(b) On such Warrant Closing Date, the Issuer shall have
delivered to the Holder an opinion of Dykema Gossett PLLC (or such
other counsel reasonably
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Exhibit 4.21
satisfactory to such Holder) reasonably satisfactory to such Holder,
dated the date of delivery, confirming in substance the matters covered
in paragraphs (a), (b), (c), (d), (e), (f), and subsection (i) of (g)
of Section 4 of the Main Agreement and to the effect that the offer and
sale of such Registered Common Stock (as defined below) to such Holder
do not require registration under the Securities Act.
(c) The issuance of Common Stock shall not cause the
Issuer to exceed the Maximum Number (as defined in the Main Agreement).
(d) As of such Warrant Closing Date, the Issuer shall
have delivered to the Holder all Restatement Notices required to be
delivered following a Restatement, and no Restatement shall have
occurred on or after the date on which the Warrant Exercise Notice is
delivered.
The Issuer shall use its best efforts to cause each of the foregoing conditions
to be satisfied at the earliest possible date. If the condition set forth above
in paragraph (a)(3) of this Section 1.2 is not satisfied, (x) Holder shall be
entitled to all remedies available at law or in equity in respect of the
Issuer's failure to issue all of the Registered Common Stock required to be
issued pursuant to this Section 1, and (y) the Issuer, upon the written demand,
from time to time, of Holder, shall issue unregistered Common Stock for a
portion or all of the shares of Common Stock to be issued as set forth in such
written demand and shall use its best efforts to cause such condition to be
satisfied. In such cases, upon satisfaction of the condition set forth in the
above paragraph (a)(3), the Issuer shall deliver written notice to such Holder
of such satisfaction. If such condition is not satisfied or waived prior to the
second (2nd) Business Day following, and excluding, the date the Warrant
Exercise Notice is delivered, then (x) the Holder may, at its sole option, and
at any time, withdraw the Warrant Exercise Notice by written notice to the
Issuer regardless of whether such condition has been satisfied or waived as of
the withdrawal date and, after such withdrawal, shall have no further
obligations with respect to such Warrant Exercise Notice and may submit a
Warrant Exercise Notice on any future date with respect to the shares referenced
in the original Warrant Exercise Notice; provided, however, that if Holder shall
not have withdrawn a Warrant Exercise Notice by written notice delivered by the
corresponding Warrant Closing Date, then the Issuer shall place in escrow by 5
p.m., New York City time, on such Warrant Closing Date an amount of cash equal
to one hundred four percent (104%) of the product of (x) the number of shares of
Registered Common Stock due under this Section 1 multiplied by (y) the Daily
Market Price calculated as of such Warrant Notice Date. If such condition is not
satisfied within sixty (60) calendar days after and including such Warrant
Closing Date, the Issuer shall cause the escrow agent to deliver such cash to
Holder in lieu of the Issuer 's obligations to issue stock upon such exercise of
the Warrant; provided, however, that the Holder shall not be obligated to pay
any consideration to exercise the Warrant in order to receive the cash payment
specified immediately above; provided, further, however, that this Warrant shall
be deemed exercised with respect to such number of shares of Registered Common
Stock as was the subject of such Warrant Exercise Notice and due to be issued
under this Section 1.
1.3 When Exercise Effective. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to 6:30 p.m. (time in effect
in New York City on such date) on the Business Day on which the Warrant Exercise
Notice is delivered as provided in Section 1.1, and at such time the Person or
Persons in whose name or names any certificate or certificates
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Exhibit 4.21
for shares of Common Stock (or Other Securities) shall be issuable upon such
exercise as provided in Section 1.4 shall be deemed to have become the Holder or
Holders of record thereof; provided, however, that such exercise shall not be
deemed effective if at or prior to 6:30 p.m. (time in effect in New York City on
such date) on the Warrant Closing Date the Holder delivers written notice of
withdrawal to the Issuer as set forth in Section 1.2.
1.4 Delivery of Warrant. On the Warrant Closing Date, the
registered Holder shall surrender this Warrant Certificate to the Issuer at the
address set forth for notices to the Issuer in Section 20 of the Main Agreement
and such Holder shall thereupon be entitled to receive the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock
(or Other Securities) determined as provided in Section 1.1 hereof.
1.5 Delivery of Stock Certificates, etc. On a Warrant Closing
Date, the Issuer at its expense (including the payment by it of any applicable
issue taxes) shall cause to be issued in the name of and delivered to the Holder
hereof or as such Holder may direct,
(a) via facsimile and at such address specified by the
Holder via a reputable overnight courier, a delivery notice in the form
of Exhibit 2 hereto and one or more certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock (or Other Securities) to which such Holder shall be
entitled upon such exercise plus, in lieu of any fractional share to
which such Holder would otherwise be entitled, cash in an amount equal
to the same fraction of the Daily Market Price per share on the
Business Day next preceding the date of such exercise, and
(b) in case such exercise is in part only, at such
address specified by the Holder via reputable overnight courier, a new
Warrant of like tenor, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock equal (without giving
effect to any adjustment thereof) to the number of such shares called
for on the face of this Warrant minus the number of such shares
designated by the Holder in the Warrant Exercise Notice upon such
exercise as provided in Section 1.1.
2. Adjustment of Common Stock Issuable Upon Exercise.
2.1 General; Warrant Price. The "Warrant Price" shall initially
equal the Stock Purchase Price described in Section 12.21. The Warrant Price
shall thereafter be adjusted and readjusted from time to time as provided in
Sections 2, 3 and 4 hereof and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof is required by
Sections 2, 3 and 4 hereof. Additionally, the Warrant Price shall increase by
seventy-five cents ($0.75) on each anniversary of the date of the Main Agreement
and each such increase shall be adjusted and readjusted as if such increase had
occurred on the date of the Main Agreement and had subsequently been adjusted
and readjusted as provided in Sections 2, 3 and 4 hereof.
2.2 Adjustment of Warrant Price.
(a) Issuance of Additional Shares of Common Stock. In
case the Issuer at any time or from time to time after the date hereof
shall issue or sell Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued
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Exhibit 4.21
pursuant to Section 2.3 or 2.4) without consideration or for a
consideration per share less than the Warrant Price in effect
immediately prior to such issue or sale, then, and in each such case,
subject to Section 2.8, such Warrant Price shall be reduced,
concurrently with such issue or sale, to a price (calculated to the
nearest .001 of a cent) determined by multiplying such Warrant Price by
a fraction;
(i) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior
to such issue or sale (on a fully-diluted basis calculated
using the treasury method in accordance with generally
accepted accounting principles) plus (2) the number of shares
of Common Stock which the aggregate consideration received or
to be received by the Issuer for the total number of such
Additional Shares of Common Stock so issued or sold would
purchase at such Warrant Price, and
(ii) the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such
issue or sale (on a fully-diluted basis calculated using the
treasury method in accordance with generally accepted
accounting principles),
provided that, for the purposes of this Section 2.2(a) (x)
immediately after any Additional Shares of Common Stock are
deemed to have been issued pursuant to Section 2.3 or 2.4,
such Additional Shares of Common Stock shall be deemed to be
outstanding, and (y) treasury shares shall not be deemed to be
outstanding.
(b) Dividends and Distributions. In case the Issuer at
any time or from time to time after the date hereof shall declare,
order, pay or make a dividend or other distribution (including, without
limitation, any distribution of other or additional stock or other
securities or property or Options by way of dividend or spin-off,
reclassification, recapitalization or similar corporate rearrangement)
on the Common Stock, other than a dividend payable in Additional Shares
of Common Stock, then, subject to Section 2.8, provision shall be made
so that the Holder shall receive upon exercise hereof in addition to
the number of shares of Common Stock receivable thereupon, the kind and
amount of securities, cash or other property which the Holder would
have been entitled to receive had the Holder held the Gross Number of
shares of Common Stock with respect to such exercise on the date of
such dividend record date and had the Holder thereafter, during the
period from the date of such dividend to and including the date of
exercise, retained such securities, cash or other property receivable
by the Holder as aforesaid during such period, giving application to
all adjustments called for during such period under this Warrant.
2.3 Treatment of Options and Convertible Securities. In case the
Issuer at any time or from time to time after the date hereof shall issue, sell,
grant or assume, or shall fix a record date for the determination of Holders of
any class of securities entitled to receive, any Options or Convertible
Securities (other than Options or Convertible Securities that constitute
Excluded Securities), then, and in each such case, the maximum number of
Additional Shares of Common
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Exhibit 4.21
Stock (as set forth in the instrument relating thereto, without regard to any
provisions contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue, sale, grant or assumption or, in case such a record date
shall have been fixed, as of the close of business on such record date (or, in
the case of Options or Convertible Securities with terms described in Section
2.3(b), the date of any change, increase or decrease described in Section
2.3(b)) (or, if the Common Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading), provided that such Additional
Shares of Common Stock shall not be deemed to have been issued unless the
consideration per share (determined pursuant to Section 2.5) of such shares
would be less than the Warrant Price in effect on the date of and immediately
prior to such issue, sale, grant or assumption or immediately prior to the close
of business on such record date (or, if the Common Stock trades on an
ex-dividend basis, on the date prior to the commencement of ex-dividend
trading), as the case may be, and provided, further, that in any such case in
which Additional Shares of Common Stock are deemed to be issued
(a) no further adjustment of the Warrant Price shall be
made upon the subsequent issue or sale of Convertible Securities or
shares of Common Stock upon the exercise of such Options or the
conversion or exchange of such Convertible Securities;
(b) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any change in
the consideration payable to the Issuer, or increase or decrease in the
number of Additional Shares of Common Stock issuable, upon the
exercise, conversion or exchange thereof (by change of rate or
otherwise), the Warrant Price computed upon the original issue, sale,
grant or assumption thereof (or upon the occurrence of the record date,
or date prior to the commencement of ex-dividend trading, as the case
may be, with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming effective,
be recomputed to reflect such increase or decrease insofar as it
affects such Options, or the rights of conversion or exchange under
such Convertible Securities, which are outstanding at such time;
(c) upon the expiration (or purchase by the Issuer and
cancellation or retirement) of any such Options which shall not have
been exercised or the expiration of any rights of conversion or
exchange under any such Convertible Securities which (or purchase by
the Issuer and cancellation or retirement of any such Convertible
Securities the rights of conversion or exchange under which) shall not
have been exercised, the Warrant Price computed upon the original
issue, sale, grant or assumption thereof (or upon the occurrence of the
record date, or date prior to the commencement of ex-dividend trading,
as the case may be, with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration (or such
purchase by the Issuer and cancellation or retirement, as the case may
be), be recomputed as if:
(i) in the case of Options for Common Stock or
Convertible Securities, the only Additional Shares of Common
Stock issued or sold were the Additional Shares of Common
Stock, if any, actually issued or
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Exhibit 4.21
sold upon the exercise of such Options or the conversion or
exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by
the Issuer for the issue, sale, grant or assumption of all
such Options, whether or not exercised, plus the consideration
actually received by the Issuer upon such exercise, or for the
issue or sale of all such Convertible Securities which were
actually converted or exchanged, plus the additional
consideration, if any, actually received by the Issuer upon
such conversion or exchange, and
(ii) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually
issued or sold upon the exercise of such Options were issued
at the time of the issue, sale, grant or assumption of such
Options, and the consideration received by the Issuer for the
Additional Shares of Common Stock deemed to have then been
issued was the consideration actually received by the Issuer
for the issue, sale, grant or assumption of all such Options,
whether or not exercised, plus the consideration deemed to
have been received by the Issuer (pursuant to Section 2.5)
upon the issue or sale of such Convertible Securities with
respect to which such Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c)
above shall have the effect of increasing the Warrant Price by an
amount in excess of the amount of the adjustment thereof originally
made in respect of the issue, sale, grant or assumption of such Options
or Convertible Securities; and
(e) in the case of any such Options which expire by their
terms not more than 30 days after the date of issue, sale, grant or
assumption thereof, no adjustment of the Warrant Price shall be made
until the expiration or exercise of all such Options, whereupon such
adjustment shall be made in the manner provided in subdivision (c)
above.
2.4 Treatment of Stock Dividends, Stock Splits, etc. In case the
Issuer at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of Holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective.
2.5 Computation of Consideration.
For the purposes of this Section 2:
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Exhibit 4.21
(a) the consideration for the issue or sale of any
Additional Shares of Common Stock shall, irrespective of the accounting
treatment of such consideration,
(i) insofar as it consists of cash, be computed
at the amount of cash received by the Issuer plus any expenses
paid or incurred by the Issuer or any commissions or
compensations paid or discounts or concessions allowed to
underwriters, dealers or others performing similar services in
connection with such issue or sale,
(ii) insofar as it consists of property
(including securities) other than cash, be computed at the
fair value thereof at the time of such issue or sale, as
determined in good faith by an independent appraisal firm of
recognized national standing appointed by the Issuer, and
(iii) in case Additional Shares of Common Stock
are issued or sold together with other stock or securities or
other assets of the Issuer for a consideration which covers
both, be the portion of such consideration so received,
computed as provided in clauses (i) and (ii) above, allocable
to such Additional Shares of Common Stock, as determined in
good faith by an independent appraisal firm of recognized
national standing appointed by the Issuer.
(b) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 2.3, relating to Options and Convertible
Securities, shall be deemed to have been issued for a consideration per
share determined by dividing
(i) the total amount, if any, received and
receivable by the Issuer as consideration for the issue, sale,
grant or assumption of the Options or Convertible Securities
in question, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for
a subsequent adjustment of such consideration to protect
against dilution) payable to the Issuer upon the exercise in
full of such Options or the conversion or exchange of such
Convertible Securities or, in the case of Options for
Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such
Convertible Securities, in each case computing such
consideration as provided in the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent
adjustment of such number to protect against dilution)
issuable upon the exercise of such Options or the conversion
or exchange of such Convertible Securities (including the full
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Exhibit 4.21
conversion or exchange of all Options and Convertible
Securities underlying such Options and Convertible
Securities); and
(c) Additional Shares of Common Stock deemed to have been
issued pursuant to Section 2.4, relating to stock dividends, stock
splits, etc., shall be deemed to have been issued for no consideration.
2.6 Adjustments for Combinations, etc. In case the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.7 Dilution in Case of Other Securities. In case any Other
Securities shall be issued or sold or shall become subject to issue or sale upon
the conversion or exchange of any stock (or Other Securities) of the Issuer (or
any issuer of Other Securities or any other Person referred to in Section 3) or
to subscription, purchase or other acquisition pursuant to any Options issued or
granted by the Issuer (or any such other issuer or Person) for a consideration
such as to dilute, on a basis consistent with the standards established in the
other provisions of this Section 2, the purchase rights granted by this Warrant,
then, and in each such case, the computations, adjustments and readjustments
provided for in this Section 2 with respect to the Warrant Price shall be made
as nearly as possible in the manner so provided and applied to determine the
amount of Other Securities from time to time receivable upon the exercise of the
Warrant, so as to protect the Holder or Holders of the Warrant against the
effect of such dilution.
2.8 Minimum Adjustment of Warrant Price. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 2 would be
less than one tenth (1/10) of one percent (1%) of the Warrant Price in effect at
the time such adjustment is otherwise so required to be made, such amount shall
be carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of such Warrant Price.
3. Business Combinations.
3.1 Adjustment upon Business Combination. In case the Issuer after
the date of the Main Agreement is party to (i) any acquisition of the Issuer by
means of merger or other form of corporate reorganization in which outstanding
shares of the Issuer are exchanged for securities or other consideration issued,
or caused to be issued, by the Acquiring Person or its Parent, Subsidiary or
affiliate, (ii) a sale of all or substantially all of the assets of the Issuer
(on a consolidated basis) in a single transaction or series of related
transactions, (iii) any other transaction or series of related transactions by
the Issuer in which the power to cast the majority of the eligible votes at a
meeting of the Issuer's shareholders at which directors are elected is
transferred to a single entity or group acting in concert, or (iv) a capital
reorganization or reclassification of the Common Stock or Other Securities
(other than a reorganization or reclassification in which the Common Stock or
Other Securities are not converted into or exchanged for cash or other property,
and, immediately after consummation of such transaction,
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Exhibit 4.21
the shareholders of the Issuer immediately prior to such transaction own the
Common Stock, Other Securities or other voting stock of the Issuer in
substantially the same proportions relative to each other as such shareholders
owned immediately prior to such transaction), then, and in the case of each such
transaction (each of which is referred to herein as "Business Combination"),
proper provision shall be made so that, upon the basis and the terms and in the
manner provided herein, the Holder, upon exercise of all or any part of this
Warrant at any time after the consummation of such Business Combination, shall
be entitled to receive upon such exercise, in lieu of the cash, property, Common
Stock or Other Securities issuable upon such exercise prior to such
consummation, any of the following, as shall be elected, in whole or in part, at
least five (5) Business Days before such consummation (or, if the Holder fails
to so elect, the Holder shall be deemed to have elected (B) below), by the
Holder:
(A) the Common Stock and Other Securities, cash and
property to which the Holder would have been entitled upon such
consummation if the Holder had held the Gross Number of shares of
Common Stock (or Other Securities) immediately prior thereto, adjusted
as nearly as possible to give effect to the net exercise provisions of
Section 1.1(a); or
(B) cash in an amount equal to the price of a European
option determined pursuant to the Black-Scholes formula as computed
using the Bloomberg Professional Service for the Gross Number of shares
of Common Stock (or Other Securities) with respect to exercise of the
portion of the Warrant for which this clause (B) is elected, using the
following variables: (i) the "current price" shall be the closing price
per share for the Common Stock (or Other Securities) as reported by the
Bloomberg Professional Service for the primary exchange or quotation
system on which such Common Stock (or Other Securities) traded on the
Business Day immediately before the date such Business Combination was
consummated; (ii) the "strike price" shall be the Warrant Price as of
the Business Day immediately before the date such Business Combination
was consummated; (iii) the "interest rate" shall be the yield to
maturity for a U.S. Treasury security with a time to maturity
equivalent to the time between the Business Day immediately before the
date such Business Combination was consummated and the Termination
Date; (iv) "volatility" shall be equal to seventy-five percent (75%) of
the number reported by the Bloomberg Professional Service for the
260-Business-Day period as of the date that is five (5) Business Days
before and excluding the date such Business Combination was announced
(but in no event shall the "volatility" be greater than seventy-five
percent (75%)); (v) the "expiration date" shall be the Termination
Date; (vi) "trading date" shall be the Business Day immediately before
the date such Business Combination was consummated; and (vii) "dividend
yield" shall be zero percent (0%). The Holder shall not be obligated to
pay any consideration (including, but not limited to, the Stock
Purchase Price) in order to receive the consideration specified in this
clause (B);
provided, that if the Acquiring Person or its Parent, as the case may
be, shall combine, subdivide or reclassify its common stock, or shall
declare any dividend payable in shares of its common stock, or shall
take any other action of a similar nature affecting such shares, the
calculations above shall be adjusted to the extent appropriate to
reflect such
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Exhibit 4.21
event, including appropriate adjustments to account for any such event
that occurs during any of the measurement periods set forth above.
3.2 Assumption of Obligations. Notwithstanding anything contained
herein or in the Main Agreement to the contrary, the Issuer will not effect any
Business Combination unless the requirements of Section 11 of the Main Agreement
have been met and unless, prior to the consummation thereof, each Person (other
than the Issuer) that may be required to deliver any stock, securities, cash or
property upon exercise of this Warrant as provided herein shall assume, by
written instrument delivered to, and reasonably satisfactory to, the Holder, (A)
the obligations of the Issuer under this Warrant (and if the Issuer shall
survive the consummation of such transaction, such assumption shall be in
addition to, and shall not release the Issuer from, any continuing obligations
of the Issuer under this Warrant) and (B) the obligation to deliver to the
Holder such shares of stock, securities, cash or property as, in accordance with
the foregoing provisions of this Section 3, the Holder may be entitled to
receive, and such Person shall have similarly delivered to the Holder an opinion
of counsel for such Person, which counsel shall be reasonably satisfactory to
the Holder, stating that the rights of the Holder under this Warrant shall
thereafter continue in full force and effect and the terms hereof, including,
without limitation, all of the provisions of this Section 3 shall be applicable
to the stock, securities, cash or property which such Person may be required to
deliver upon any exercise of this Warrant or the exercise of any of the rights
pursuant hereto.
4. Other Dilutive Events, Restatements.
(a) In case any event shall occur as to which the
provisions of Sections 2 and 3 are not strictly applicable (including,
without limitation, the repurchase by the Issuer of Options or
Convertible Securities) but the failure to make any adjustment would
not fairly protect the purchase rights represented by this Warrant in
accordance with the essential intent and principles of such Sections,
then, in each such case, the Issuer shall notify the Holder of such
event and, upon demand by the Holder, the Issuer shall appoint a firm
of independent certified public accountants of recognized national
standing (which shall not be the regular auditors of the Issuer), which
shall give their opinion upon the adjustment, if any, on a basis
consistent with the essential intent and principles established in
Sections 2 and 3, necessary to preserve the value of the purchase
rights represented by this Warrant. Such opinion shall include the
basis for the calculations and conclusions contained therein in
reasonable detail. Upon receipt of such opinion, the Issuer will
promptly deliver a copy thereof via facsimile and overnight courier to
the Holder or Holders of this Warrant and shall make the adjustments
described therein. Upon written request by Holder, Issuer shall provide
Holder with reasonable access to such information as may be necessary
to evaluate the calculations and conclusions contained in such opinion.
Within twenty (20) Business Days of receiving all such information
Holder may dispute the conclusions of such opinion by providing a
written notice of dispute to Issuer, which notice shall include the
basis for the calculations and conclusions contained therein in
reasonable detail. If Issuer and Holder are unable to agree to the
appropriate calculation of such adjustment within ten (10) Business
Days of such notice from Holder, then an independent
nationally-recognized firm of certified public accountants selected by
Holder and reasonably acceptable to Issuer shall be
11
Exhibit 4.21
appointed to resolve the dispute, and such accountants' decision shall
be final and binding upon the Issuer and the Holder. The costs of such
firm of certified public accountants shall be borne by Issuer.
(b) In the event of a Restatement the Warrant Price shall
equal the corresponding Restatement Purchase Price, if the Restatement
Purchase Price is lower than the Warrant Price in effect on the date
ninety (90) calendar days after and excluding such Restatement Date.
"Restatement Purchase Price" means one hundred and fifty percent (150%)
of the Average Market Price calculated on the date ninety (90) calendar
days after and excluding the related Restatement Date. The Issuer shall
deliver a Restatement Notice to the Holder no later than two (2) days
after and excluding each Restatement Date.
5. No Impairment. The Issuer will not, by amendment of its certificate of
incorporation or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Issuer (a)
will not permit the par value of any shares of stock receivable upon the
exercise of this Warrant to exceed the amount payable therefor upon such
exercise, (b) will take all such action as may be necessary or appropriate in
order that the Issuer may validly and legally issue fully paid and nonassessable
shares of stock on the exercise of the Warrants from time to time outstanding,
and (c) will not take any action which results in any adjustment of the Warrant
Price if the total number of shares of Common Stock (or Other Securities)
issuable after the action upon the exercise of all of the Warrants would exceed
the total number of shares of Common Stock (or Other Securities) then authorized
by the Issuer's certificate of incorporation and available for the purpose of
issue upon such exercise.
6. Accountants' Report as to Adjustments. In each case of any adjustment
or readjustment in the shares of Common Stock (or Other Securities) issuable
upon the exercise of this Warrant, the Issuer at its expense will promptly
compute such adjustment or readjustment in accordance with the terms of this
Warrant and cause independent certified public accountants of recognized
national standing (which may be the regular auditors of the Issuer) selected by
the Issuer to verify such computation and prepare a report setting forth such
adjustment or readjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which such adjustment or readjustment is
based, including but not limited to a statement of (a) the consideration
received or to be received by the Issuer for any Additional Shares of Common
Stock issued or sold or deemed to have been issued, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Warrant Price
in effect immediately prior to such issue or sale and as adjusted and readjusted
(if required by Section 2, 3 or 4) on account thereof. The Issuer will forthwith
mail a copy of each such report to each Holder of a Warrant and will, upon the
written request at any time of any Holder of a Warrant, furnish to such Holder a
copy of the most recent report setting forth the Warrant Price in effect as of
the date such report is delivered and showing in reasonable detail how it was
calculated. The Issuer will also keep
12
Exhibit 4.21
copies of all such reports at its principal office and will cause the same to be
available for inspection at such office during normal business hours by any
Holder of a Warrant or any prospective purchaser of a Warrant designated by the
Holder thereof.
7. Notices of Corporate Action.
In the event of :
(a) any taking by the Issuer of a record of the holders
of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a regular
periodic dividend payable in cash out of earned surplus in an amount
not exceeding the amount of the immediately preceding cash dividend for
such period) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) any capital reorganization of the Issuer, any
reclassification or recapitalization of the capital stock of the Issuer
or any consolidation or merger involving the Issuer and any other
Person or any transfer of all or substantially all the assets of the
Issuer to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Issuer,
the Issuer will mail to the Holder a notice specifying (i) the date or expected
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right, and (ii) the date or expected date on which any such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding-up. Such notice shall be
delivered to Holder at least ten (10) Business Days prior to the date therein
specified, but in no event later than the date notice is delivered to any holder
of Common Stock.
8. Reservation of Shares. For so long as the Warrant represented hereby
has not been exercised in full, the Issuer shall at all times prior to the
Termination Date reserve and keep available, free from pre-emptive rights, out
of its authorized but unissued capital stock, the number of shares required to
permit the full exercise of this Warrant (assuming it were exercised in the
manner provided for in Section 1.1(a) hereof). In the event the number of Common
Shares (or other securities) issuable hereunder exceeds the authorized number of
shares of Common Stock (or other securities), the Issuer shall, as soon as is
reasonably possible and in all events within eight (8) Business Days, take all
actions necessary to increase the authorized number, including causing its Board
of Directors to call a special meeting of shareholders, recommend such increase
and not withdraw such recommendation.
13
Exhibit 4.21
9. Transfer and Assignment.
9.1 By accepting delivery of this Warrant Certificate, the
registered Holder hereof covenants and agrees with the Issuer not to exercise
the Warrant or transfer the Warrant or the Common Shares represented hereby
except in compliance with the terms of the Main Agreement and this Warrant
Certificate.
9.2 By accepting delivery of this Warrant Certificate, the
registered Holder hereof covenants and agrees with the Issuer that no Warrant
may be sold or assigned, in whole or in part, unless such sale or assignment
complies with applicable federal and state securities laws and until such Holder
shall deliver to the Issuer (i) written notice of such transfer and of the name
and address of the transferee and such notice has been received by the Issuer;
(ii) a written agreement of the transferee to comply with the terms of this
Warrant Certificate and, solely insofar as it relates to this Warrant, the Main
Agreement; and (iii) a certificate of the Holder or the transferee that such
transfer complies with applicable federal and state securities laws. If a
portion of the Warrant is transferred, all rights of the registered Holder
hereunder may be exercised by the transferee provided that any registered Holder
of the Warrant may deliver a Warrant Exercise Notice only with respect to the
Common Stock subject to such Holder's portion of the Warrant.
9.3 The Issuer will pay all documentary stamp taxes (if any)
attributable to the issuance of Common Shares upon the exercise of the Warrant
by the registered Holder hereof; provided, however, that the Issuer shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the registration of the Warrant Certificate or any certificates for
Common Shares in a name other than that of the registered Holder of the Warrant
Certificate surrendered upon the exercise of a Warrant, and the Issuer shall not
be required to issue or deliver the Warrant Certificate or certificates for
Common Shares unless or until the person or persons requesting the issuance
thereof shall have paid to the Issuer the amount of such tax or shall have
established to the reasonable satisfaction of the Issuer that such tax has been
paid.
10. Lost or Stolen Warrant. In case this Warrant Certificate shall be
mutilated, lost, stolen or destroyed, the Issuer shall issue in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, or
in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor, but only upon receipt of
evidence reasonably satisfactory to the Issuer of such loss, theft or
destruction of such Warrant Certificate and customary indemnity reasonably
satisfactory to the Issuer.
11. Warrant Agent. The Issuer (and any corporation into which the Issuer is
merged or any corporation resulting from any consolidation to which the Issuer
is a party) shall serve as warrant agent (the "Warrant Agent") under this
Warrant. The Warrant Agent hereunder shall at all times maintain a register (the
"Warrant Register") of the Holders of this Warrant. Upon 30 days' notice to the
registered Holder hereof, the Issuer may appoint a new Warrant Agent. Such new
Warrant Agent shall be a corporation doing business and in good standing under
the laws of the United States or any state thereof, and having a combined
capital and surplus of not less than $100,000,000. The combined capital and
surplus of any such new Warrant Agent shall be deemed to be the combined capital
and surplus as set forth in the most recent report of its
14
Exhibit 4.21
condition published by such Warrant Agent prior to its appointment; provided
that such reports are published at least annually pursuant to law or to the
requirements of a federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new Warrant Agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall be reasonably
necessary or expedient to execute and deliver any further assurance, conveyance,
act or deed, the same shall be done at the expense of the Issuer and shall be
legally and validly executed and delivered by the Issuer. Any corporation into
which any new Warrant Agent may be merged or any corporation resulting from any
consolidation to which any new Warrant Agent shall be a party or any corporation
to which any new Warrant Agent transfers substantially all of its corporate
trust or shareholders services business shall be a successor Warrant Agent under
this Warrant without any further act; provided that such corporation (i) would
be eligible for appointment as successor to the Warrant Agent under the
provisions of this Section 11 or (ii) is a wholly owned subsidiary of the
Warrant Agent. Any such successor Warrant Agent shall promptly cause notice of
its succession as Warrant Agent to be delivered via reputable overnight courier
to the registered Holder hereof at such Holder's last address as shown on the
Warrant Register.
12. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
12.1 [Intentionally omitted]
12.2 "Acquiring Person" means, in connection with any Business
Combination: (i) the continuing or surviving corporation of a consolidation or
merger with the Issuer (if other than the Issuer), (ii) the transferee of all or
substantially all of the properties or assets of the Issuer, (iii) the
corporation consolidating with or merging into the Issuer in a consolidation or
merger in connection with which the Common Stock is changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
(iv) the entity or group acting in concert acquiring or possessing the power to
cast the majority of the eligible votes at a meeting of the Issuer's
shareholders at which directors are elected or, (v) in the case of a capital
reorganization or reclassification described in clause (d) of the definition of
Business Combination, the Issuer.
12.3 "Acquisition Price" means (i) the Daily Market Price of the
Common Stock on the Business Day immediately preceding the date on which a
Business Combination is consummated, or (ii) if a purchase, tender or exchange
offer is made by the Acquiring Person (or by any of its affiliates) to the
holders of the Common Stock and such offer is accepted by the holders of more
than fifty percent (50%) of the outstanding shares of Common Stock, the greater
of (x) the price determined in accordance with the provisions of the foregoing
clause (i) of this sentence and (y) the Daily Market Price on the Business Day
immediately preceding the acceptance of such offer by the holders of more than
fifty percent (50%) of the outstanding shares of Common Stock.
12.4 "Additional Shares of Common Stock" means all shares
(including treasury shares) of Common Stock issued or sold (or, pursuant to
Section 2.3 or 2.4, deemed to be issued) by the Issuer after the date hereof,
whether or not subsequently reacquired or retired by the
15
Exhibit 4.21
Issuer, other than shares issued upon the exercise of the Warrants; provided,
however, that this term shall not include Excluded Securities.
12.5 "Average Market Price" means, with respect to any reference
date, the average of the Daily Market Prices of the Common Stock (or, for
purposes of determining the Average Market Price of the common stock of an
Acquiring Person or its Parent under Section 3, the common stock of such
Acquiring Person or such Parent) for the thirty (30) Business Days ending on and
including the third Business Day before such reference date, but not greater
than the average of the Daily Market Prices of the Common Stock for the five (5)
Business Days ending on and including the twenty-eighth Business Day before such
reference date, subject to adjustment for stock splits, recombinations, stock
dividends and the like.
12.6 "Common Stock" as defined in the introduction to this Warrant,
such term to include any stock into which such Common Stock shall have been
changed or any stock resulting from any reclassification of such Common Stock,
and all other stock of any class or classes (however designated) of the Issuer
the Holders of which have the right, without limitation as to amount, either to
all or to a share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference to Common Stock shares.
12.7 "Convertible Securities" means any evidences of indebtedness,
shares of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Additional Shares of Common
Stock.
12.8 "Daily Market Price" means, on any date, the amount per share
of the Common Stock (or, for purposes of determining the Daily Market Price of
the common stock of an Acquiring Person or its Parent under Section 3, the
common stock of such Acquiring Person or such Parent), equal to (i) the daily
volume-weighted average price on the NYSE (or, in the case of an Acquiring
Person or its Parent, on the national securities exchange on which such entity's
common stock is admitted for trading) or, if no such sale takes place on such
date, the average of the closing bid and asked prices on the NYSE thereof on
such date, in each case as reported by Bloomberg, L.P. (or by such other Person
as the Holder and the Issuer may agree), or (ii) if such Common Stock or common
stock of an Acquiring Person or its Parent is not then listed or admitted to
trading on the NYSE, the higher of (x) the book value per share thereof as
determined by any firm of independent public accountants of recognized standing
selected by the Board of Directors of the Issuer as of the last calendar day of
any month ending within sixty (60) calendar days preceding the date as of which
the determination is to be made or (y) the fair value per share thereof
determined in good faith by an independent, nationally recognized appraisal firm
selected by the Issuer and reasonably acceptable to the Holder (whose fees and
expenses shall be borne by the Issuer), subject to adjustment for stock splits,
recombinations, stock dividends and the like.
12.9 "Excluded Securities" means each of the following:
(a) Except for purposes of Section 2.4, Common Stock
issued or issuable pursuant to any stock split, dividend or
distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder
16
Exhibit 4.21
thereof to receive directly or indirectly, additional shares of Common
Stock without payment of any consideration by such holder, including
Common Stock issued or issuable with respect to the Series B Preferred
Stock or Series C Preferred Stock;
(b) Common Stock issued or issuable upon the exercise of
any options or warrants to purchase Common Stock outstanding on the
date of the Main Agreement or upon conversion of any securities
convertible into Common Stock outstanding on the date of the Main
Agreement, in each case in accordance with the terms of such options,
warrants or securities in effect on the date of the Main Agreement;
(c) Common Stock, Options or Convertible Securities
issued or issuable consistent with past practice to employees,
consultants or directors of Issuer directly or pursuant to a stock
option plan, employee stock purchase plan or restricted stock plan, or
other similar arrangements related to compensation for services in
effect on the date of the Main Agreement, or similar plans or
arrangements, consistent with past practice, approved by Issuer's Board
of Directors and, when required by law, its shareholders after the date
of the Main Agreement;
(d) Common Stock, Options or Convertible Securities
issued or issuable in connection with any debt financing transaction;
provided that (i) the number of shares of Common Stock (including
shares of Common Stock issuable upon exercise, conversion, redemption
or otherwise under such Options and Convertible Securities) shall not,
when aggregated with all other shares of Common Stock (including shares
of Common Stock issuable upon exercise, conversion, redemption or
otherwise under such Options and Convertible Securities) issued under
this subsection (d), exceed 2,428,261, subject to appropriate
adjustment for stock splits, stock dividends, stock distributions,
reverse stock splits, and similar transactions, and (ii) the value of
the Common Stock (including shares of Common Stock issuable upon
exercise, conversion, redemption or otherwise under such Options and
Convertible Securities) issued in each such transaction, determined as
if each such share of Common Stock has a value equal to the Daily
Market Price as of the date such transaction is consummated, shall not
exceed ten percent (10%) of the value of the non-equity portion of such
transaction; and
(e) Common Stock issued or issuable upon exercise of this
Warrant.
12.10 "Gross Number" means, with respect to any exercise of this
Warrant, the product of (A) the number of shares on the face of this Warrant,
not to exceed in the aggregate the Issuable Number, for which this Warrant is
being exercised as specified in the respective Warrant Exercise Notice
multiplied by (B) the quotient of (1) the Stock Purchase Price divided by (2)
the Warrant Price (as adjusted to the date of such calculation).
12.11 "Issuable Number" means two million two hundred forty-five
thousand one hundred six (2,245,106).
12.12 "Issuer" as defined in the introduction to this Warrant, means
Champion Enterprises, Inc. and any corporation which shall succeed to or assume
the obligations of Champion Enterprises, Inc.
17
Exhibit 4.21
12.13 "Options" means any rights, options or warrants to subscribe
for, purchase or otherwise acquire either Additional Shares of Common Stock or
Convertible Securities.
12.14 "Other Securities" means any stock (other than Common Stock)
and other securities of the Issuer or any other Person (corporate or otherwise)
which the Holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities.
12.15 "Parent" as to any Acquiring Person, means any corporation
which (a) controls the Acquiring Person directly or indirectly through one or
more intermediaries, (b) is required to include the Acquiring Person in the
consolidated financial statements contained in such Parent's Annual Report on
Form 10-K (if Parent is required to file such a report) or would be required to
so include the Acquiring Person in such Parent's consolidated financial
statements if they were prepared in accordance with U.S. GAAP and (c) is not
itself included in the consolidated financial statements of any other Person
(other than its consolidated subsidiaries).
12.16 "Person" means a corporation, an association, a partnership, a
limited liability company, an organization, a business, an individual, a
government or political subdivision thereof or a governmental agency.
12.17 "Registered Common Stock" means Common Stock that has been
registered under the Securities Act and is freely tradable.
12.18 "Restatement" means that the Issuer adversely restates net
income or shareholders' equity, in any material respect, in any portion of its
financial statements as included in a Form 10-K or Form 10-Q filed with the
Securities and Exchange Commission in the form of an amendment thereto, press
release, Form 8-K or any other method except as is required as a result of a
change occurring after the date of the Main Agreement in (i) applicable law or
(ii) generally accepted accounting principles promulgated by the Financial
Accounting Standards Board or the Securities and Exchange Commission, which
change is implemented by the Issuer in the manner and at the time prescribed by
such law or such generally accepted accounting principle.
12.19 "Restatement Date" means the most recent date on which a
Restatement occurs.
12.20 "Restatement Notice" means a written notice from the Issuer to
the Holder, (i) stating the Restatement Date and (ii) including the documents in
which the Restatement was publicly disclosed.
12.21 "Stock Purchase Price" means $10.0218. The Stock Purchase
Price shall increase by seventy-five cents ($0.75) on each anniversary of the
date of the Main Agreement.
12.22 "Subsidiary" of a Person means (i) a corporation, a majority
of whose stock with voting power, under ordinary circumstances, to elect
directors is at the time of determination, directly or indirectly, owned by such
Person or by one or more Subsidiaries of such Person, or (ii) any other entity
(other than a corporation) in which such Person or one or more Subsidiaries
18
Exhibit 4.21
of such Person, directly or indirectly, at the date of determination thereof has
at least a majority ownership interest.
12.23 "Termination Date" means the date set forth in the first
paragraph hereof, provided that the Termination Date shall be extended by one
day for each day that the Registration Requirement (as defined in the Main
Agreement) is not satisfied.
13. Remedies. The Issuer stipulates that the remedies at law of the Holder
of this Warrant in the event of any default or threatened default by the Issuer
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate and that, to the fullest extent permitted by law,
such terms may be specifically enforced by a decree for the specific performance
of any agreement contained herein or by an injunction against a violation of any
of the terms hereof or otherwise.
14. No Rights or Liabilities as Shareholder. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
shareholder of the Issuer or as imposing any obligation on such Holder to
purchase any securities or as imposing any liabilities on such Holder as a
shareholder of the Issuer, whether such obligation or liabilities are asserted
by the Issuer or by creditors of the Issuer.
15. Notices. All notices and other communications under this Warrant shall
be in writing and shall be delivered by facsimile or by a nationally recognized
overnight courier, postage prepaid, addressed (a) if to Holder or the Issuer, in
the manner provided in the Main Agreement, or (b) if to any other Holder of any
Warrant, at the registered address of such Holder as set forth in the register
kept at the principal office of the Issuer, provided that the exercise of any
Warrant shall be effective in the manner provided in Section 1.
16. Amendments. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
17. Descriptive Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
18. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
19. Judicial Proceedings; Waiver of Jury. Any judicial proceeding brought
against the Issuer with respect to this Warrant may be brought in any court of
competent jurisdiction in the State of New York or of the United States of
America for the Southern District of New York and, by execution and delivery of
this Warrant, each of the Issuer and Holder (a) accepts, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any related
appellate court, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Warrant, subject to any rights of appeal, and
(b) irrevocably waives any objection the Issuer or Holder may now or hereafter
have as to the venue of any such suit, action or proceeding brought
19
Exhibit 4.21
in such a court or that such court is an inconvenient forum. Each of the Issuer
and Holder hereby waives personal service of process and consents, that service
of process upon it may be made by certified or registered mail, return receipt
requested, at its address specified or determined in accordance with the
provisions of Section 15, and service so made shall be deemed completed on the
first Business Day after such service is deposited with a reputable overnight
courier or, if earlier, when delivered. Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any party to bring proceedings against the other party in the courts of any
other jurisdiction. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY, OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS WARRANT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
This Warrant Certificate shall not be valid unless signed by the
Issuer.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
20
Exhibit 4.21
IN WITNESS WHEREOF, Champion Enterprises, Inc. has caused this Amended
and Restated Warrant Certificate to be signed by its duly authorized officer.
Dated: February 17, 2003 CHAMPION ENTERPRISES, INC.
By: /s/ JOHN J. COLLINS, JR.
----------------------------------------
Name: John J. Collins, Jr.
Title: Secretary
By signing below, Fletcher International, Ltd. hereby acknowledges that this
Amended and Restated Warrant supersedes that certain warrant issued to Fletcher
International, Ltd. on April 2, 2002 (the "Prior Warrant"), and that the Prior
Warrant shall have no further force and effect.
FLETCHER INTERNATIONAL, LTD.,
by its duly authorized investment advisor,
FLETCHER ASSET MANAGEMENT, INC.
By: /s/ JONATHAN B. SCHINDEL
----------------------------------------
Name: Jonathan B. Schindel
Title: Chief Operating Officer and Counsel
By: /s/ PETER M. ZAYFERT
----------------------------------------
Name: Peter M. Zayfert
Title: Executive Vice President
Exhibit 4.21
EXHIBIT 1
[FORM OF WARRANT EXERCISE NOTICE]
(To Be Executed Upon Exercise Of the Warrant)
[DATE]
Champion Enterprises, Inc.
2701 Cambridge Court, Suite 300
Auburn Hills, MI 48326
Attention: Chief Financial Officer
Re: Warrant No. W-[ ]
Ladies and Gentlemen:
The undersigned is the registered Holder of the above-referenced
warrant (the "Warrant") issued by Champion Enterprises, Inc. (the "Issuer"),
evidenced by copy of the Warrant Certificate attached hereto, and hereby elects
to exercise the Warrant to purchase [___________](1) shares of Common Stock (as
defined in such Warrant Certificate) and, pursuant to Section 1.1(a) of the
Warrant Certificate shall be entitled to receive [______________](2) shares of
Common Stock, net.
In accordance with the terms of the attached Warrant Certificate, the
undersigned requests that certificates for such shares be registered in the name
of and delivered to the undersigned at the following address:
The undersigned will deliver the original of the Warrant Certificate no
later than the second Business Day after and excluding the date of this notice.
[If the number of shares of Common Stock to be delivered is less than
the total number of shares of Common Stock deliverable under the Warrant, insert
the following -- The undersigned requests that a new warrant certificate
substantially identical to the attached Warrant Certificate
- --------------------
(1) Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any
adjustment for Additional Shares of Common Stock or any other stock or
other securities or property or cash which, pursuant to the adjustment
provisions of this Warrant, may be delivered upon exercise. In the case
of partial exercise, a new Warrant or Warrants will be issued and
delivered, representing the unexercised portion of the Warrant, to the
Holder surrendering the Warrant.
(2) Insert here the net number of shares that the Holder is entitled to
receive upon exercise, using the formula in Section 1(a) of this
Warrant.
Exhibit 4.21
be issued to the undersigned evidencing the right to purchase the number of
shares of Common Stock equal to (x) the total number of shares of Common Stock
deliverable under the Warrant less (y) [_____________](3).]
[FLETCHER INTERNATIONAL, LTD., by its
duly authorized investment advisor,
FLETCHER ASSET MANAGEMENT, INC.]
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
ACKNOWLEDGED:
CHAMPION ENTERPRISES, INC.
By: _________________________________
Name:
Title:
- --------------------
(3) Insert here the number of shares identified in the first footnote to
this Form of Warrant Exercise Notice
2
Exhibit 4.21
EXHIBIT 2
[FORM OF WARRANT EXERCISE DELIVERY NOTICE]
[Date]
Fletcher International, Ltd.
c/o Fletcher Asset Management, Inc.
22 East 67th Street
New York, NY 10021
Attention: Peter Zayfert
Telephone: (212) 284-4800
Facsimile: (212) 284-4801
Ladies and Gentlemen:
Reference is made to the Agreement (the "Main Agreement") dated as of
March 29, 2002 by and between Champion Enterprises, Inc. and Fletcher
International, Ltd. Capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Main Agreement.
This notice confirms that the Warrant has been exercised by the Holder
with respect to ______________ shares of Common Stock at a Warrant Price (as
defined in the Warrant Certificate) of $_____________. Attached are copies of
the front and back of the _________ original stock certificates, each
representing ___________ shares of Common Stock, together with a copy of the
overnight courier air bill which will be used to ship such stock certificates.
Also attached is a reissued warrant certificate, as provided in Section 1.5 of
the Warrant Certificate. We will send the original stock certificates by
overnight courier to the following address:
[TO COME]
with a copy to:
Fletcher International, Ltd.
c/o Fletcher Asset Management, Inc.
22 East 67th Street
New York, NY 10021-5805
Attention: Peter Zayfert
Exhibit 4.21
CHAMPION ENTERPRISES, INC.
By: ______________________________________
Name:
Title:
2