EXHIBIT 10.23
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SECURITIES IS EFFECTIVE UNDER
THE SECURITIES ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT, AND, IF THE COMPANY REQUESTS, AN OPINION SATISFACTORY TO THE
COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
CONSUMER PORTFOLIO SERVICES, INC.
WARRANT
Warrant No. 1 Dated: July 10, 2008
Consumer Portfolio Services, Inc., a California corporation
(the "COMPANY"), hereby certifies that, for value received, Citigroup Global
Markets Inc. or its registered assigns (including permitted transferees, the
"HOLDER") is entitled to purchase from the Company up to a total of two million
five hundred thousand (2,500,000) (as adjusted from time to time as provided in
Section 9) Shares (as defined below) (each such share, a "WARRANT SHARE" and all
such shares, the "WARRANT SHARES") at an exercise price equal to $0.00001 per
share (as adjusted from time to time as provided in Section 9, the "EXERCISE
PRICE"), at any time and from time to time commencing on the date hereof (the
"INITIAL EXERCISE DATE") through and including July 10, 2018 (the "EXPIRATION
DATE"), and subject to the following terms and conditions. This warrant (the
"WARRANT") is issued pursuant to that certain Amended and Restated Note Purchase
Agreement, dated as of the Original Issue Date (the "AGREEMENT"), by and among
Folio Funding II, LLC, a Delaware limited liability company, the Company, as
Seller, and Citigroup Financial Products Inc., a Delaware corporation, as the
Note Purchaser and the Administrative Agent.
1. DEFINITIONS. The capitalized terms used herein and not otherwise
defined herein or in Annex A to the Agreement shall have the meanings set forth
below:
"AFFILIATE" of any specified Person means any other person or
entity which directly or indirectly through one or more intermediaries controls,
is controlled by or is under common control with, such specified Person. For
purposes of this definition, "CONTROL" as used with respect to any person or
entity means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"COMPANY OFFER" means any tender offer (including exchange
offer), as amended from time to time, made by the Company or any of its
subsidiaries for the purchase (including the acquisition pursuant to an exchange
offer) of all or any portion of the outstanding Shares, except as permitted
pursuant to Rule 10b-18 promulgated under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT").
"ELIGIBLE MARKET" means any of the New York Stock Exchange,
the American Stock Exchange or Nasdaq.
"MARKET PRICE" means, as to any security, (i) if the principal
trading market for such security is an exchange, the average of the last
reported sale prices per share for the last ten previous Trading Days in which a
sale was reported, as officially reported on any consolidated tape, (ii) if
clause (i) is not applicable, the average of the closing bid price per share for
the last five previous Trading Days as set forth by Nasdaq or (iii) if clauses
(i) and (ii) are not applicable, the average of the closing bid price per share
for the last five previous Trading Days as set forth in the National Quotation
Bureau sheet listing for such security. Notwithstanding the foregoing, if there
is no reported sales price or closing bid price, as the case may be, on any of
the ten Trading Days preceding the event requiring a determination of Market
Price hereunder, then the Market Price shall be determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it.
"NASDAQ" means the Nasdaq Global Market or the Nasdaq Capital
Market.
"ORIGINAL ISSUE DATE" means July 10, 2008.
"OTHER SECURITIES" refers to any share capital (other than
Shares) and other securities of the Company or any other Person which the Holder
of this Warrant at any time shall be entitled to receive, or shall have
received, upon the exercise of this Warrant, in lieu of or in addition to
Shares, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Shares or Other Securities pursuant to Section
9 hereof or otherwise.
"PERSON" means any individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.
"REGISTRABLE SECURITIES" means the Warrant Shares; PROVIDED,
HOWEVER, that the Warrant Shares shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Warrant Shares shall have been
declared effective under the Securities Act and such Warrant Shares shall have
been disposed of pursuant to such Registration Statement, (ii) when such Warrant
Shares are eligible to be sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the Securities Act or
(iii) all the Warrant Shares shall have ceased to be outstanding.
"SHARES" means the shares of common stock of the Company, no
par value per share.
"TRADING DAY" means any day on which the Shares are listed or
quoted and traded on any Eligible Market or any successor market or, if
applicable, the National Quotation Bureau or, if none of the foregoing is
applicable, a business day in New York City as such term is commonly understood.
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"TRANSFER AGENT" shall mean American Stock Transfer & Trust
Company or such other Person as the Company may appoint from time to time.
"WARRANT SHARE DELIVERY DATE" shall have the meaning set forth
in Section 5.
2. REGISTRATION OF WARRANT. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. REGISTRATION OF TRANSFERS. The Company shall register the transfer
of any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto as APPENDIX A duly
completed and signed, to the Company at its address specified herein. Upon any
such registration and transfer, a new warrant in substantially the form of a
Warrant (any such new warrant, a "NEW WARRANT"), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. Each New Warrant evidencing the
portion of this Warrant so transferred shall bear the restrictive legend set
forth above. The acceptance of the New Warrant by the transferee thereof shall
be deemed the acceptance by such transferee of all of the rights and obligations
of a holder of a Warrant, and such transferee shall be subject to the
restrictions on transfer set forth in such restrictive legend.
4. EXERCISE AND DURATION OF WARRANT.
(a) This Warrant shall be exercisable by the registered Holder
at any time and from time to time on and after the Initial Exercise Date to and
including the Expiration Date. At 5:00 P.M., New York City time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value, regardless of whether this Warrant shall be
returned to the Company.
(b) A Holder may exercise this Warrant by delivering to the
Company (i) an exercise notice, in the form attached hereto as APPENDIX B (the
"EXERCISE NOTICE"), appropriately completed and duly signed, delivered or by
facsimile, PROVIDED that signed originals follow within three Trading Days, and
(ii) payment of the Exercise Price for the number of Warrant Shares as to which
this Warrant is being exercised (as set forth in Section 4(c) below), and the
date such items are received by the Company is an "EXERCISE DATE." Execution and
delivery of the Exercise Notice shall have the same effect as cancellation of
the original Warrant and issuance of a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares, if any.
(c) The Holder shall pay the Exercise Price (i) in cash or by
wire transfer of immediately available funds in accordance with the Company's
instructions or (ii) if at any time the Market Price exceeds the Exercise Price,
by means of a "cashless exercise," by presenting and surrendering to the Company
this Warrant, in whole or in part, in which event the Company shall issue to the
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Holder the number of Warrant Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to
the Holder upon such cashless exercise;
Y = the number of Warrant Shares with
respect to which this Warrant is being
exercised;
A = the Market Price on the Exercise Date; and
B = the Exercise Price.
(d) If an exercise of this Warrant is to be made in connection
with a registered public offering or sale of the Company, such exercise may, at
the election of the Holder, be conditioned on the consummation of the public
offering or sale of the Company, in which case such exercise shall not be deemed
effective until the consummation of such transaction.
5. DELIVERY OF WARRANT SHARES.
(a) Upon exercise of this Warrant and subject to the receipt
of signed originals pursuant to Section 4(b)(i) above, the Company shall
promptly, but in no event later than the third Trading Day following such
exercise (the "WARRANT SHARE DELIVERY DATE"), issue or cause to be issued and
deliver or cause to be delivered to the Holder, in such name or names as the
Holder may designate, a certificate for the Warrant Shares issuable upon such
exercise bearing (only if such legend is required by applicable law) the
restrictive legend set forth above. The Holder, or any Person so designated by
the Holder to receive the Warrant Shares, shall be deemed to have become the
holder of record of such Warrant Shares as of the Exercise Date.
(b) Certificates evidencing the Warrant Shares shall not
contain any legend (including the legend set forth above), (i) while a
registration statement covering the resale of such Warrant Shares is effective
under the Securities Act, or (ii) following any sale of such Warrant Shares
pursuant to Rule 144, or (iii) if such Warrant Shares are eligible for sale
under Rule 144 without restriction, or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Securities and
Exchange Commission ("SEC")). If all or any portion of a Warrant is exercised at
a time when there is an effective registration statement to cover the resale of
the Warrant Shares or at a time when the Warrant Shares so issued may be resold
without restriction under Rule 144, such Warrant Shares shall be issued free of
all legends. The Company agrees that at such time as such legend is no longer
required under this Section 5(b), it will, no later than three Trading Days
following the delivery by a purchaser to the Company or the Company's Transfer
Agent of a certificate representing Warrant Shares issued with a restrictive
legend (such third Trading Day, the "LEGEND REMOVAL DATE"), deliver or cause to
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be delivered to such purchaser a certificate representing such shares that is
free from all restrictive and other legends. The Company may not make any
notation on its records or give instructions to any Transfer Agent of the
Company that enlarge the restrictions on transfer set forth in this Section 5.
Certificates for Warrant Shares subject to legend removal hereunder shall be
transmitted by the Transfer Agent of the Company to the purchasers by crediting
the account of the purchaser's prime broker with the Depository Trust Company
System.
(c) Each purchaser, severally and not jointly with the other
purchasers, agrees that the removal of the restrictive legend from certificates
representing Warrant Shares as set forth in this Section 5 is predicated upon
the Company's reliance that the purchaser will sell any Warrant Shares pursuant
to either the registration requirements of the Securities Act, including any
applicable prospectus delivery requirements, or an exemption therefrom.
(d) This Warrant is exercisable, either in its entirety or,
from time to time, for a portion of the number of Warrant Shares. Upon surrender
of this Warrant following one or more partial exercises, the Company shall issue
or cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares.
(e) RESCISSION RIGHTS. If the Company fails to cause its
Transfer Agent to transmit to the Holder a certificate or certificates
representing the Warrant Shares pursuant to this Section 5(e) by the Warrant
Share Delivery Date, then the Holder will have the right to rescind such
exercise.
(f) COMPENSATION FOR BUY-IN ON FAILURE TO TIMELY DELIVER
CERTIFICATES UPON EXERCISE. In addition to any other rights available to the
Holder, if the Company fails to cause its Transfer Agent to transmit to the
Holder a certificate or certificates representing the Warrant Shares pursuant to
an exercise on or before the Warrant Share Delivery Date, and if after such date
the Holder is required by its broker to purchase (in an open market transaction
or otherwise) Shares to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon such exercise (a
"BUY-IN"), then the Company shall (1) pay in cash to the Holder the amount by
which (x) the Holder's total purchase price (including brokerage commissions, if
any) for the Shares so purchased exceeds (y) the amount obtained by multiplying
(A) the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (B) the price at which the
sell order giving rise to such purchase obligation was executed, and (2) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or deliver to
the Holder the number of Shares that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. For
example, if the Holder purchases Shares having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise of Shares with an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (1) of the immediately preceding sentence the Company shall be required
to pay the Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing herein
shall limit a Holder's right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company's
failure to timely deliver certificates representing Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
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(g) CLOSING OF BOOKS. The Company will not close its
stockholder books or records in any manner which prevents the timely exercise of
this Warrant, pursuant to the terms hereof.
6. CHARGES, TAXES AND EXPENSES. Issuance and delivery of certificates
for Warrant Shares shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of which taxes and
expenses shall be paid by the Company; PROVIDED, HOWEVER, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares or Warrant
in a name other than that of the Holder. The Holder shall be responsible for all
other tax liability that may arise as a result of holding or transferring this
Warrant or receiving Warrant Shares upon exercise hereof.
7. REPLACEMENT OF WARRANT. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and in substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company, if any, of such loss, theft or destruction and
customary and reasonable indemnity, if requested.
8. RESERVATION OF WARRANT SHARES. The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Shares, solely for the purpose of enabling it
to issue, upon exercise of this Warrant as herein provided, the number of
Warrant Shares which are then issuable and deliverable upon the exercise of this
entire Warrant, free from all taxes, liens, claims and encumbrances, and such
Warrant Shares will not be subject to any pre-emptive rights or similar rights
(taking into account the adjustments and restrictions of Section 9 hereof). The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued, fully paid and
nonassessable. The Company covenants and warrants that the issuance of this
Warrant or the Warrant Shares shall not trigger any price-based anti-dilution
adjustments in any securities issued by the Company or any pre-emptive rights,
in each case other than with respect to those securities or rights held by
Levine Leichtman Capital Partners IV, L.P. The Company will take all such action
as may be necessary to assure that such Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of
any securities exchange or automated quotation system upon which the Shares may
be listed or quoted, as the case may be.
9. CERTAIN ADJUSTMENTS. The number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 9.
(a) DIVIDENDS. If the Company, at any time while this Warrant
is outstanding, pays a dividend on its Shares payable in additional Shares or
otherwise makes a distribution on any class of share capital that is payable in
Shares, then in each such case the number of Warrant Shares issuable upon
exercise of this Warrant shall be adjusted by multiplying the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
adjustment by a fraction, (A) the numerator of which shall be the number of
Shares outstanding immediately after such dividend or distribution and (B) the
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denominator of which shall be the number of Shares outstanding immediately prior
to the opening of business on the day after the record date for the
determination of shareholders entitled to receive such dividend or distribution.
Any adjustment made pursuant to this Section 9(a) shall become effective
immediately after the record date for the determination of shareholders entitled
to receive such dividend or distribution; PROVIDED, HOWEVER, that if such record
date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, any such adjustment
shall become effective as of the time of actual payment of such dividends or
distribution.
(b) SHARE SPLITS. If the Company, at any time while this
Warrant is outstanding, (i) subdivides outstanding Shares into a larger number
of shares, or (ii) combines outstanding Shares into a smaller number of shares,
then in each such case the number of Warrant Shares issuable upon exercise of
this Warrant shall be adjusted by multiplying the number of Warrant Shares
issuable upon exercise of this Warrant immediately prior to such adjustment by a
fraction, (A) the numerator of which shall be the number of Shares outstanding
immediately after such event and (B) the denominator of which shall be the
number of Shares outstanding immediately before such event. Any adjustment
pursuant to this Section 9(b) shall become effective immediately after the
effective date of such subdivision or combination.
(c) RECLASSIFICATIONS. A reclassification of the Shares (other
than any such reclassification in connection with a merger or consolidation to
which Section 9(e) applies) into shares of any other class of shares shall be
deemed:
(i) a distribution by the Company to the holders of
its Shares of such shares of such other class of shares for the purposes and
within the meaning of this Section 9; and
(ii) (ii) if the outstanding Shares shall be changed
into a larger or smaller number of Shares as part of such reclassification, such
change shall be deemed a subdivision or combination, as the case may be, of the
outstanding Shares for the purposes and within the meaning of Section 9(b).
(d) OTHER DISTRIBUTIONS. If the Company, at any time while
this Warrant is outstanding, distributes to holders of Shares (i) evidences of
its indebtedness, (ii) any security (other than a distribution of Shares covered
by Section 9(a)), (iii) rights or warrants to subscribe for or purchase any
security or (iv) any other asset (in each case, "DISTRIBUTED PROPERTY"), then in
each such case the number of Warrant Shares issuable upon exercise of this
Warrant shall be adjusted by multiplying the number of Warrant Shares issuable
upon exercise of this Warrant immediately prior to the record date fixed for
determination of shareholders entitled to receive such distribution by a
fraction, (A) the numerator of which shall be the Market Price on such record
date, and (B) the denominator of which shall be the Market Price on such record
date less the then fair market value per share of the Distributed Property
distributed in respect of one outstanding Share, which, if the Distributed
Property is other than cash or marketable securities, shall be as determined in
good faith by the Board of Directors of the Company. Such adjustments shall
become effective on the record date for any such distribution.
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(e) FUNDAMENTAL TRANSACTIONS. If, at any time while this
Warrant is outstanding, (i) the Company effects any merger or consolidation of
the Company with or into another Person, (ii) the Company effects any sale of
all or substantially all of its assets in one or a series of related
transactions or (iii) there shall occur any merger of another Person into the
Company whereby the Shares are cancelled, converted or reclassified into or
exchanged for other securities, cash or property (in any such case, a
"FUNDAMENTAL TRANSACTION"), then, as a condition to the consummation of such
Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company shall
take all reasonable steps to cause such other Person to) execute and deliver to
each Holder of Warrants a written instrument providing that:
(x) so long as any Warrant remains outstanding on
such terms and subject to such conditions as shall be as nearly
equivalent as may be practicable to the provisions set forth in this
Warrant, each Warrant, upon the exercise thereof at any time on or
after the consummation of such Fundamental Transaction, shall be
exercisable into, in lieu of Shares issuable upon such exercise prior
to such consummation, the securities or other property (the
"SUBSTITUTED PROPERTY") that would have been received in connection
with such Fundamental Transaction by a holder of the number of Shares
into which such Warrant was exercisable immediately prior to the
consummation of such Fundamental Transaction, assuming such holder of
Shares:
(A) is not a Person with which the Company
is consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was
made, as the case may be (a "CONSTITUENT PERSON"), or an
Affiliate of a Constituent Person; and
(B) failed to exercise such Holder's rights
of election, if any, as to the kind or amount of securities,
cash and other property receivable in connection with such
Fundamental Transaction (PROVIDED, HOWEVER, that if the kind
or amount of securities, cash or other property receivable in
connection with such Fundamental Transaction is not the same
for each Ordinary Share held immediately prior to such
Fundamental Transaction by a Person other than a Constituent
Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised (a
"NON-ELECTING SHARE"), then, for the purposes of this Section
9(e), the kind and amount of securities, cash and other
property receivable in connection with such Fundamental
Transaction by each Non-Electing Share shall be deemed to be
the kind and amount so receivable per share by a plurality of
the Non-Electing Shares); and
(y) the rights and obligations of the Company (or, in
the event of a transaction in which the Company is not the surviving
Person, such other Person) and the Holders in respect of Substituted
Property shall be as nearly equivalent as may be practicable to the
rights and obligations of the Company and Holders in respect of Shares
hereunder.
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Such written instrument shall provide for adjustments which,
for events subsequent to the effective date of such written instrument, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
Section 9. The above provisions of this Section 9(e) shall similarly apply to
successive Fundamental Transactions.
(f) CALCULATIONS. All calculations under this Section 9 shall
be made to the nearest 1/100th of a share. The number of Shares outstanding at
any given time shall not include Shares owned or held by or for the account of
the Company, and the disposition of any such shares shall be considered an issue
or sale of Shares.
(g) ADJUSTMENTS. Notwithstanding any provision of this Section
9, no adjustment of the number of Warrant Shares issuable upon exercise of this
Warrant
shall be required unless and until such adjustment either by itself or with
other adjustments not previously made increases or decreases by at least 1% the
number of Warrant Shares issuable upon exercise of this Warrant immediately
prior to the making of such adjustment. Any adjustment representing a change of
less than such minimum amount shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Section 9 and not
previously made, would result in a minimum adjustment.
(h) NOTICE OF ADJUSTMENTS. Upon the occurrence of each
adjustment pursuant to this Section 9, the Company will promptly deliver to the
Holder a certificate executed by the Company's Chief Financial Officer setting
forth, in reasonable detail, the event requiring such adjustment and the method
by which such adjustment was calculated, and the adjusted number or type of
Warrant Shares or other securities or assets issuable upon exercise of this
Warrant (as applicable). The Company will retain at its office copies of all
such certificates and cause the same to be available for inspection at said
office during normal business hours by the Holder or any prospective purchaser
of the Warrant designated by the Holder.
(i) NOTICE OF CORPORATE EVENTS. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Shares, including, without limitation, any granting of rights or
warrants to subscribe for or purchase any share capital of the Company or any
subsidiary of the Company, (ii) authorizes, approves, enters into any agreement
contemplating, or solicits shareholder approval for, any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of the
affairs of the Company, then the Company shall deliver to the Holder a notice
describing the material terms and conditions of such transaction at least 15
calendar days prior to the applicable record or effective date on which a Person
would need to hold Shares in order to participate in or vote with respect to
such transaction; PROVIDED, HOWEVER, that the failure to deliver such notice or
any defect therein shall not affect the validity of the corporate action
required to be described in such notice.
10. REGISTRATION RIGHTS.
(a) The Company will:
(i) as soon as reasonably practicable, but in no
event later than thirty (30) days following the date hereof, file a registration
statement on Form S-3 or, if unavailable, Form S-1 (the "REGISTRATION
STATEMENT"), for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, registering the resale of the
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Warrant Shares by the Holder. The Company shall use commercially reasonable
efforts, subject to receipt of necessary information from the Holder, to cause
the SEC to declare such Registration Statement effective (i) if the Registration
Statement is not subject to SEC review, within the earlier of (x) sixty (60)
days of the date hereof and (y) ten (10) days of the date the Company shall have
received notice from the SEC of no review and (ii) if the Registration Statement
is subject to SEC review, within one hundred twenty (120) days of the date
hereof;
(ii) prepare and file with the SEC such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep the Registration Statement
continuously effective until the earlier of (i) the date that is two and
one-half years after the date of effectiveness of the Registration Statement and
(ii) until all such Warrant Shares have been sold by the Holder;
(iii) so long as the Registration Statement is
effective covering the resale of Warrant Shares, furnish to the Holder such
reasonable number of copies of prospectuses and such other documents as the
Holder may reasonably request in order to facilitate the public sale or other
disposition of all or any of the Warrant Shares;
(iv) use commercially reasonable efforts to file
documents required of the Company for normal blue sky clearance in states
specified in writing by the Holder; PROVIDED, HOWEVER, that the Company shall
not be required to qualify to do business or consent to service of process
generally in any jurisdiction in which the Company is not now so qualified or
has not so consented;
(v) bear all expenses in connection with the
procedures in this Section 10(a) and the registration of the Warrant Shares
pursuant to the Registration Statement, other than fees and expenses, if any, of
counsel or other advisers to the Holder or, brokerage fees and commissions
incurred by the Holder, if any in connection with the offering of the Warrant
Shares;
(vi) use all commercially reasonable efforts to
prevent the issuance of any stop order or other order suspending the
effectiveness of such Registration Statement and, if such an order is issued, to
obtain the withdrawal thereof at the earliest possible time and to notify each
Holder of the issuance of such order and the resolution thereof; and
(vii) permit counsel for the Holder to review the
Registration Statement and all amendments and supplements thereto, and any
comments made by the staff of the SEC and the Company's responses thereto,
within a reasonable period of time prior to the filing thereof with the SEC (or,
in the case of comments made by the staff of the SEC, within a reasonable period
of time following the receipt thereof by the Company);
PROVIDED, that in the case of clause (vii) above, the Company
shall not be required to provide, and shall not provide, any Holder with
material, non-public information unless the Holder agrees to receive such
information and enters into a written confidentiality agreement on customary
terms with the Company.
(b) If (i) a Registration Statement covering all the Warrant
Shares required to be filed by the Company pursuant to this Section 10(b) is (A)
not filed with the SEC on or before thirty (30) days after the date hereof or
(B) if the Registration Statement is not declared effective by the SEC (1) if
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the Registration Statement is not subject to SEC review, on or before the
earlier of (x) sixty (60) days after the date hereof and (y) ten (10) days after
the date the Company shall have received notice from the SEC of no review and
(2) if the Registration Statement is subject to SEC review, on or before one
hundred twenty (120) days after the date hereof or (ii) on any day after the
effective date of the Registration Statement sales of all the Warrant Shares
required to be included on such Registration Statement cannot be made pursuant
to such Registration Statement (including, without limitation, because of a
failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register sufficient number of Warrant Shares), then the
Administrative Agent shall have the right to value the Pledged Residual Interest
Certificates on a mark-to-market basis pursuant to Section 3.07 of the
Agreement.
(c) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Warrant, indemnify and hold harmless
each Holder, the officers, directors, members, partners, agents, investment
advisors and employees (and any other Persons with a functionally equivalent
role of a Person holding such titles, notwithstanding a lack of such title or
any other title) of each of them, each Person who controls any such Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, shareholders, partners,
agents and employees (and any other Persons with a functionally equivalent role
of a Person holding such titles, notwithstanding a lack of such title or any
other title)of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys' fees)
and expenses (collectively, "LOSSES"), as incurred, arising out of or relating
to (1) any untrue or alleged untrue statement of a material fact contained in a
Registration Statement, any prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, or (2) any violation
or alleged violation by the Company of the Securities Act, Exchange Act or any
state securities law, or any rule or regulation thereunder, in connection with
the performance of its obligations under the Agreement, PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any Losses
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Registration Statement, the prospectus or
any amendment or supplement thereto made in reliance upon and in conformity with
information regarding the Holder demanding such indemnification or its proposed
method of distribution of Registrable Securities furnished in writing to the
Company by such Holder expressly for use therein or to the extent that such
information relates to such Holder's proposed method of distribution of
Registrable Securities and was reviewed and not objected to in writing by such
Holder. The Company shall notify the Holders promptly of the institution, threat
or assertion of any proceeding ("PROCEEDING") arising from or in connection with
the transactions contemplated by the Agreement of which the Company is aware.
(d) INDEMNIFICATION BY HOLDER. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
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and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or based solely upon any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, any prospectus, or any form of prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Holder to the
Company for inclusion in such Registration Statement or such prospectus. In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the net proceeds received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(e) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing, and
the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; PROVIDED, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to the Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and counsel to
the Indemnified Party shall reasonably believe that a material conflict of
interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel (plus any local counsel)
shall be at the expense of the Indemnifying Party). The Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its
written consent, which consent shall not be unreasonably withheld or delayed. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
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Subject to the terms of the Agreement, all reasonable fees and
expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten Trading Days of written notice
thereof to the Indemnifying Party; PROVIDED, that the Indemnified Party shall
promptly reimburse the Indemnifying Party for that portion of such fees and
expenses applicable to such actions for which such Indemnified Party is
judicially determined to be not entitled to indemnification hereunder.
(f) CONTRIBUTION. If the indemnification under Section 10(c)
or 10(d) is unavailable to an Indemnified Party or insufficient to hold an
Indemnified Party harmless for any Losses, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth in the Agreement, any
reasonable attorneys' or other fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 10(f) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 10(f), no Holder shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the net proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, except in
the case of fraud by such Holder.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
11. FRACTIONAL SHARES. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant. If
any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon exercise of this Warrant, the Company shall make a
cash payment to the Holder equal to (a) such fraction multiplied by (b) the
Market Price on the Exercise Date of one full Warrant Share.
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12. RESTRICTED SECURITIES. The Holder represents and warrants that it
(i) understands that the Warrant and the Warrant Shares have not been registered
under the Securities Act and (ii) understands the restrictions set forth on the
legend printed on the face of this Warrant.
13. LISTING ON SECURITIES EXCHANGES. In furtherance and not in
limitation of any other provision of this Warrant, if the Company at any time
shall list any Shares on any Eligible Market, the Company will, at its expense,
simultaneously list the Warrant Shares (and maintain such listing) on such
Eligible Market, upon official notice of issuance following the exercise of this
Warrant; and the Company will so list, register and maintain such listing on any
Eligible Market any Other Securities, if and at the time that any securities of
like class or similar type shall be listed on such Eligible Market by the
Company.
14. REMEDIES. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that 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.
15. NOTICES. Any and all notices or other communications or deliveries
hereunder (including, without limitation, any Exercise Notice) shall be in
writing and shall be mailed by certified mail, return receipt requested, or by a
nationally recognized courier service or delivered (in person or by facsimile),
against receipt to the party to whom such notice or other communication is to be
given. The address for such notices or communications shall be as set forth in
the Agreement entered into by the Holder and the Company. Any notice or other
communication given by means permitted by this Section 15 shall be deemed given
at the time of receipt thereof.
16. WARRANT AGENT. The Company shall serve as warrant agent under this
Warrant. Upon 30 days' written notice to the Holder, the Company may appoint a
new warrant agent. Any Person into which any new warrant agent may be merged,
any Person resulting from any consolidation to which any new warrant agent shall
be a party or any Person 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. Any such
successor warrant agent shall promptly cause notice of its succession as warrant
agent to be mailed (by first class mail, postage prepaid) to the Holder at the
Holder's last address as shown on the Warrant Register.
17. MISCELLANEOUS. (a) This Warrant may be assigned by the Holder. This
Warrant may not be assigned by the Company, except to a successor in the event
of a Fundamental Transaction. This Warrant shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
Subject to the preceding sentence, nothing in this Warrant shall be construed to
give to any Person other than the Company and the Holder any legal or equitable
right, remedy or cause of action under this Warrant. This Warrant may be amended
only in writing signed by the Company and the Holder and their successors and
assigns.
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(b) The Company will not, by amendment of its governing
documents or through any reorganization, transfer of assets, consolidation,
merger, 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 actions as may be necessary or
appropriate in order to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any Warrant Shares above the amount payable therefor
upon exercise thereof, (ii) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares on the exercise of this Warrant,
free from all taxes, liens, claims and encumbrances and (iii) will not close its
shareholder books or records in any manner which interferes with the timely
exercise of this Warrant.
(c) This Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard to
conflicts of laws principles thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and Federal courts sitting in the City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of the Agreement),
and hereby irrevocably waives, and agrees not to assert any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, or that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither party shall be deemed in default of any provision
of this Warrant, to the extent that performance of its obligations or attempts
to cure a breach hereof are delayed or prevented by any event reasonably beyond
the control of such party, including, without limitation, war, hostilities, acts
of terrorism, revolution, riot, civil commotion, national emergency, strike,
lockout, unavailability of supplies, epidemic, fire, flood, earthquake, force of
nature, explosion, embargo, or any other Act of God, or any law, proclamation,
regulation, ordinance, or other act or order of any court, government or
governmental agency, PROVIDED that such party gives the other party written
notice thereof promptly upon discovery thereof and uses reasonable efforts to
cure or mitigate the delay or failure to perform.
(e) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
(f) In case any one or more of the provisions of this Warrant
shall be deemed invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
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faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
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SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by its authorized officer as of the date first indicated above.
CONSUMER PORTFOLIO SERVICES, INC.
By:
---------------------------------
Name:
Title:
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