EXHIBIT 99.8
THIS WARRANT AND THE SECURITIES PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS, UNLESS THE PROPOSED
TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR
REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
OAKWOOD HOMES CORPORATION
WARRANT
No.__-__ February 26, 2001
VOID AFTER February 26, 2009
THIS CERTIFIES that, for value received, CREDIT SUISSE FIRST BOSTON
INTERNATIONAL or its assigns (the "Holder"), shall be entitled to subscribe for
and purchase from OAKWOOD HOMES CORPORATION, a North Carolina corporation (the
"Corporation"), 9,534,439 (subject to adjustment as provided herein, the
"Warrant Shares") of the Corporation's Common Stock, par value $0.50 per share,
at an initial exercise price (the "Exercise Price") of $1.96875 for each Warrant
Share, during the Exercise Period (as defined in Section 1), pursuant to the
terms and subject to the conditions of this Warrant. Certain terms used in this
Warrant are defined in Section 4. The Corporation represents and warrants that
the Warrant Shares, if issued on the date of this Warrant, would represent
19.99% of the Corporation's issued and outstanding Common Stock.
As used herein, the term "Common Stock" shall mean (i) the class of
stock designated above or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value or from no par value
to par value. In the event the Corporation shall, after the date hereof, issue
securities of greater or superior voting rights than the shares of Common Stock
outstanding as of the date hereof, the Holder, at its option, may receive upon
exercise of any Warrant either Common Stock or a like number of such securities
with greater or superior voting rights.
Section 1. Exercise Period. This Warrant may be exercised in whole or
in part by the Holder at any time after the date hereof until 5:00 p.m. Eastern
Time on February 26, 2009 (such period being herein referred to as the "Exercise
Period"). The Company agrees to use reasonable efforts to mail to the original
Holder by certified mail, return receipt requested, notice of the expiration
date of this Warrant, no later than 15 days prior to such date, but failure to
provide notice will not extend the Exercise Period.
Section 2. Exercise of Warrant.
(a) The rights represented by this Warrant may be exercised, in whole
or in any part (but not as to a fractional share of Common Stock), by (i) the
surrender of this Warrant (properly endorsed) at the principal office of the
Corporation at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (or at such other
agency or office of the Corporation in the United States of America as it may
designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Corporation), (ii) delivery to the Corporation of
a notice of election to exercise in the form of Exhibit A, and (iii) either (a)
payment to the Corporation by cash, wire
transfer funds or check in an amount equal to the then applicable Exercise Price
per share multiplied by the number of Warrant Shares then being purchased.
Alternatively, any Holder may exercise its right, during the Exercise Period to
receive Warrant Shares on a net basis such that, without any payment of funds by
the Holder, the Holder receives that number of Warrant Shares otherwise issuable
upon exercise of its Warrants less the number of Warrant Shares having an
aggregate Market Price at the time of exercise equal to the aggregate Exercise
Price that would otherwise have been payable by the Holder of the Warrant
Shares.
(b) Each date on which this Warrant is surrendered and on which payment
of the Exercise Price is made in accordance with Section 2(a) above is referred
to as an "Exercise Date." Simultaneously with each exercise, the Corporation
shall issue and deliver a certificate or certificates for the Warrant Shares
being purchased pursuant to such exercise, registered in the name of the Holder
or the Holder's designee, to such Holder or designee, as the case may be. If
such exercise shall not have been for the full number of the Warrant Shares,
then the Corporation shall issue and deliver to the Holder a new Warrant,
registered in the name of the Holder, of like tenor to this Warrant, for the
balance of the Warrant Shares.
(c) The person in whose name any certificate for shares of Common Stock
is issued or issuable upon any exercise shall for all purposes be deemed to have
become the holder of record of such shares as of the Exercise Date. The
Corporation shall pay all documentary, stamp or other transactional taxes
attributable to the issuance or delivery of shares of Common Stock upon exercise
of all or any part of this Warrant; provided, however, that the Corporation
shall not be required to pay taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any certificate for such shares
in a name other than that of the Holder to the extent such taxes would exceed
the taxes otherwise payable if such certificate had been issued to the Holder.
No fractional shares of Common Stock will be issued in connection with
any exercise hereunder, but in lieu of such fractional shares, the Corporation
shall make a cash payment therefor equal in amount to the product of the
applicable fraction multiplied by the current Market Price per share of Common
Stock.
Section 3. Antidilution Provisions. The number of shares of Common
Stock purchasable on exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time as provided in this Section 3.
(a) Issuance of Additional Common Stock. (i) If the Corporation, at any
time or from time to time after the date of this Warrant, shall issue, sell,
grant, or shall fix a record date for the determination of holders of any class
of securities entitled to receive, shares of Common Stock at a price per share
that is less than the Exercise Price on the date the Corporation fixes the
offering price of such additional shares of Common Stock (a "Dilutive Issuance")
then the Exercise Price shall be reduced as of such date, to a price equal to
the lowest price per share received or to be received by the Corporation in such
Dilutive Issuance, (ii) if the Corporation, at any time or from time to time
after the date of this Warrant, shall issue, sell, grant, or shall fix a record
date for the determination of holders of any class of securities entitled to
receive, shares of Common Stock at a price per share that is greater than the
Exercise Price but less than the Market Price on the date the Corporation fixes
the offering price of such additional shares of Common Stock (also, a "Dilutive
Issuance"), then the Exercise Price shall be adjusted as of such date by
multiplying the then Exercise Price by a fraction, the denominator of which is
the number of outstanding shares of Common Stock after giving effect to such
additional shares and the numerator of which is the number of outstanding shares
of Common Stock prior to such
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issuance plus such number of shares of Common Stock that would be purchasable at
the Market Price per share on such date for the aggregate consideration to be
received for the additional shares and (iii) if the Corporation, at any time or
from time to time after the date of this Warrant shall issue or grant shares of
Common Stock pursuant to the Plan (but not more than 1,700,000 shares in the
aggregate) a price per share that is less than the Exercise Price on the date of
issue or grant (also, a "Dilutive Issuance"), then the Exercise Price shall be
adjusted as of such date by subtracting from the Exercise Price an amount equal
to the product of (A) the excess of the Exercise Price over the consideration
per share received for such additional shares times (B) a fraction, the
numerator of which is the number of such additional shares and the denominator
of which is the number of outstanding shares of Common Stock after giving effect
to such additional shares.
(b) Treatment of Options and Convertible Securities. If the
Corporation, at any time or from time to time after the date of this Warrant,
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 (defined below) or Convertible Securities (defined below), then, and in
each such case, the maximum number of shares of Common Stock (as set forth in
the instrument relating thereto, without regard to any provisions contained
therein for a subsequent adjustment of such number and whether or not the right
to convert or exchange or exercise is immediate or conditioned upon the passage
of time, the occurrence or non-occurrence of some event or otherwise) 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 shares of Common Stock issued and consequently give rise
to adjustment as, and to the extent, provided in paragraph (a) 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; provided that, in
each such case no further adjustment to the Exercise Price shall be made upon
the subsequent issue or sale of shares of Common Stock upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(c) Change in Capital Stock. If the Corporation (i) pays a dividend or
makes a distribution on its Common Stock in shares of its Common Stock, (ii)
subdivides its outstanding shares of Common Stock into a greater number of
shares, (iii) combines its outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues by reclassification of its Common Stock any
shares of its capital stock, then in each case the Exercise Price in effect
immediately prior to such action shall be proportionately adjusted so that the
Holder of any Warrant exercised thereafter may receive the aggregate number and
kind of shares of capital stock of the Corporation which he would have owned
immediately following such action if such Warrant had been exercised immediately
prior to such action.
The adjustment as provided in this paragraph (c) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification. If after an adjustment, a Holder of a Warrant, upon its
exercise, may receive shares of two or more classes of capital stock of the
Corporation, the Corporation shall determine the allocation of the adjusted
Exercise Price between the class of capital stock. After such allocation, the
exercise privilege and the exercise price of each class of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Section 3.
(d) 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 securities of the Corporation or to subscription,
purchase or other acquisition pursuant to any
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Options issued or granted by the Corporation such as to dilute, on a basis to
which the standards established in the other provisions of this Section 3 are
applicable, then, and in each such case, the computations, adjustments and
readjustments provided for in this Section 3 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 Warrants, so as
to protect the Holder against the effect of such dilution.
(e) Other Changes in Common Stock. If the Corporation shall be a party
to any Significant Corporate Event in which the previously outstanding shares of
Common Stock shall be changed into or exchanged for different securities of the
Corporation or common stock or other securities of another corporation or
interests in a noncorporate entity or other property (including cash) or any
combination of any of the foregoing, as a condition of the consummation of such
Significant Corporate Event, lawful and adequate provisions shall be made so
that (1) the Holder, upon the exercise hereof at any time on or after the date
such a Significant Corporate Event is consummated (the "Consummation Date") (but
during the Exercise Period), shall be entitled to receive, and this Warrant
shall thereafter represent the right to receive, in lieu of the Warrant Shares
issuable upon such exercise prior to the Consummation Date, the amount of
securities or other property to which the Holder would actually have been
entitled as a holder of Common Stock upon the consummation of such a Significant
Corporate Event if the Holder had exercised this Warrant immediately prior
thereto (subject to adjustments from and after the Consummation Date as nearly
equivalent as possible to the adjustments provided for in this Section 3), or
(2) in the case of a Significant Corporate Event in which the Corporation is not
the survivor, if so elected by the Holder, the Holder shall be entitled to
receive on the Consummation Date in cancellation of this Warrant, the amount of
securities or other property to which the Holder would actually have been
entitled as a holder of Common Stock upon consummation of such Significant
Corporate Event if the Holder had exercised this Warrant immediately prior
thereto and had paid the Exercise Price therefor.
Notwithstanding anything contained herein to the contrary, unless the
Holder makes an election under clause (2) above, the Corporation shall not
effect any Significant Corporate Event unless prior to the consummation thereof
each acquiring corporation or other person which may be required to deliver any
securities or other property upon the exercise of this Warrant shall assume, by
written instrument delivered to the Holder, the obligation to deliver to the
Holders such securities or other property to which, in accordance with the
foregoing provisions, the Holder may be entitled and an opinion of counsel
reasonably satisfactory, which opinion shall state that this Warrant, including,
without limitation, the exercise and anti-dilution provisions applicable to this
Warrant, if any, shall thereafter continue in full force and effect and shall be
enforceable against such acquiring corporation or other person in accordance
with the terms hereof.
(f) Other Dividends or Other Distributions. If the Corporation declares
a dividend or other distribution upon its capital stock, other than a dividend
payable in shares of Common Stock, then the Corporation shall pay over to the
Holder, on the dividend payment date, the cash, stock or Other Securities and
other property which the Holder would have received if the Holder had exercised
this Warrant in full and had been the record holder of the Warrant Shares
represented by this Warrant on the date on which a record is taken for the
purpose of such dividend, or, if a record is not taken, the date as of which the
holders of such capital stock of record entitled to such dividend are to be
determined, provided that, in the case of a dividend consisting of stock or
securities (other than shares of Common Stock, Options or Convertible
Securities) or other property (except cash), the Holder may, at its option,
elect that instead, lawful and adequate provisions shall be made (including
without limitation any necessary
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reduction in the Exercise Price) whereby the Holder shall thereafter have the
right to receive, upon exercise of this Warrant on the terms and conditions
specified in this Warrant and in addition to the Warrant Shares issuable upon
such exercise, such shares of stock, securities or property.
(g) Adjustment of Number of Shares. Upon each adjustment in the
Exercise Price, the number of Warrant Shares purchasable hereunder shall be
adjusted to the nearest whole share to the product obtained by multiplying the
number of Warrant Shares purchasable immediately prior to such adjustment in the
Exercise Price by a fraction, the numerator of which shall be the Exercise Price
immediately prior to such adjustment and the denominator of which shall be the
Exercise Price immediately thereafter.
(h) Notice of Adjustment. Whenever the Exercise Price or the number of
Warrant Shares for which this Warrant is exercisable shall be adjusted pursuant
to this Section 3, the Corporation shall deliver a certificate signed by its
chief financial officer to the Holder setting forth, in reasonable detail, the
event requiring the adjustment, the method by which adjustment was calculated
specifying the number of Warrant Shares for which this Warrant is now
exercisable, and any change in the Exercise Price.
(i) Notice of Certain Corporate Action. In case the Corporation shall
propose to (1) pay any dividend or make any other distribution to the holders of
its capital stock, (2) offer to the holders of its capital stock rights to
subscribe for or to purchase shares of Common Stock or shares of any other class
of securities, rights or options, (3) effect any reclassification of its capital
stock, (4) effect any reorganization, or (5) effect any Significant Corporate
Event, then, in each such case, the Corporation shall give to the Holder a
notice of such proposed action, which shall specify the date on which a record
is to be taken for the purposes of such dividend, distribution rights or vote,
or the date on which such reclassification, reorganization, or Significant
Corporate Event is to take place and the date of participation therein by the
holders of capital stock, if any such date is to be fixed and shall also set
forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action on the capital stock, if any, and the number
and kind of any other shares of capital stock which will comprise the Warrant
Shares, and the Exercise Price, after giving effect to any adjustment, if any,
which will be required by this Section 3 as a result of such action. Such notice
shall be so given in the case of any action covered by clause (1) or (2) above
at least 20 days prior to the record date for determining holders of the capital
stock for purposes of such action, and in the case of any other such action, at
least 30 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of capital stock, whichever shall
be the earlier.
(j) Certain Events. If any event occurs as to which, in the good faith
judgment of the Board of Directors of the Corporation, the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of this Section 3, then the Board of Directors
of the Corporation in the good faith, reasonable exercise of its business
judgment may decrease the Exercise Price and/or increase the number of Warrant
Shares issuable upon exercise hereof, in accordance with such essential intent
and principles so as to protect such exercise rights as aforesaid.
(k) Purchase of Common Stock by Corporation. If the Corporation at any
time while this Warrant is outstanding, directly or indirectly, through an
affiliate or otherwise, purchases, redeems or acquires any shares of Common
Stock at a price per share in excess of the then current Market Price per share
for Common Stock then the Exercise Price shall be adjusted to
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that price determined by multiplying such Exercise Price by a fraction, (i) the
numerator of which is the number of outstanding shares of Common Stock prior to
such purchase, redemption or other acquisition minus the number of shares of
Common Stock which the aggregate consideration for the total number of such
shares of Common Stock so purchased, redeemed or acquired would have purchased
at the current Market Price and (ii) the denominator of which is the number of
outstanding shares of Common Stock after giving effect to such purchase,
redemption or acquisition.
(l) Computation of Consideration. For the purposes of this Section 3:
(1) the consideration for any shares of Common Stock or any Options
or Convertible Securities, irrespective of the accounting treatment of
such consideration,
(i) insofar as it consists of cash, shall be
computed as the amount of cash received by the Corporation, and
insofar as it consists of securities, the Market Price therefor
or insofar as it consists of other property, the Fair Market
Value thereof, as of the date immediately preceding such issue,
sale, grant, or the record date therefor, in each case without
deducting any expenses paid or incurred by the Corporation, any
commissions or compensation paid or concessions or discounts
allowed to underwriters, dealers or others performing similar
services, and any accrued interest or dividends in connection
with such issue or sale, provided the consideration for any
Common Stock or Options issued pursuant to the Plan shall, in
the case of Common Stock, be the Market Price as of the date of
issue or grant and, in the case of Options, the exercise price
of the Common Stock issued or issuable upon exercise of the
Options, and
(ii) in case shares of Common Stock or Options
or Convertible Securities are or are to be issued, sold or
granted together with other stock or securities or other assets
of the Corporation for a consideration which covers both, shall
be the proportion of such consideration so received, computed
as provided in subdivision (i) above, allocable to such shares
of Common Stock or Options or Convertible Securities, as the
case may be, all as determined by the Board of Directors of the
Corporation in the good faith reasonable exercise of its
business judgment; and
(2) shares of Common Stock deemed to have been issued upon the
issue, sale, or grant of Options or Convertible Securities pursuant to
Section 3(b), shall be deemed to have been issued for a consideration
per share of Common Stock determined by dividing
(i) the total amount, if any, received and
receivable (or, pursuant to this Section 3(k), deemed to have
been received) by the Corporation as consideration for the
issue, sale, or grant 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) payable to the
Corporation upon the exercise in full of such Options or the
conversion or exchange of such
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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 comprising such
consideration as provided in the foregoing subdivision (1), 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) issuable upon the
exercise of such Options or the conversion or exchange of such
Convertible Securities.
Section 4. Certain Defined Terms.
"Convertible Securities" means any evidences of indebtedness, shares of
stock, or securities directly or indirectly convertible into or exchangeable for
shares of Common Stock.
"Fair Market Value" means, on any relevant date, as to any property,
the fair market value as reasonably determined by the Board of Directors of the
Corporation and reasonably acceptable to the Holder, but if the Holder has not
so accepted such determination of fair market value within 10 business days of
the date notice of such determination by the Board of Directors is delivered to
the Holder, then as determined by an independent investment banking firm
selected by the Holder and reasonably acceptable to the Corporation. If the Fair
Market Value is determined by such investment banking firm exceeds the Fair
Market Value as determined by the Board of Directors by 10% or more, the cost of
the engagement of the investment banking firm will be borne by the Corporation.
"Market Price" means, as to any security on any relevant date, the Fair
Market Value per share of such security, or if there shall be a public market
for such security, the average of the daily closing prices for the ten (10)
consecutive trading days before such date excluding any trades which are not
bona fide arm's length transactions. The closing price for each day shall be (a)
if such security is listed or admitted for trading on any national securities
exchange, the last sale price of such security, regular way, or the mean of the
closing bid and asked prices thereof if no such sale occurred, in each case as
officially reported on the principal securities exchange on which such security
are listed, or (b) if quoted on NASDAQ or any similar system of automated
dissemination of quotations of securities prices then in common use the mean
between the closing high bid and low asked quotations of such security in the
over-the-counter market as shown by NASDAQ or such similar system of automated
dissemination of quotations of securities prices, as reported by any member firm
of the New York Stock Exchange selected by the Corporation, (c) if not quoted as
described in clause (b), the mean between the high bid and low asked quotations
for the Warrant Shares as reported by NASDAQ or any similar successor
organization, as reported by any member firm of the New York Stock Exchange
selected by the Corporation. If such security is quoted on a national securities
or central market system in lieu of a market or quotation system described
above, the closing price shall be determined in the manner set forth in clause
(a) of the preceding sentence if bid and asked quotations are reported but
actual transactions are not, and in the manner set forth in clause (b) of the
preceding sentence if actual transactions are reported.
"Options" means rights, options or warrants to subscribe for, purchase
or otherwise acquire either Common Stock or Convertible Securities.
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"Other Securities" means any capital stock (other than Common Stock)
and any other securities of the Corporation or any other person (corporate or
otherwise) which the Holders at any time shall be entitled to receive, or shall
have received, upon the exercise or partial exercise of this Warrant, in lieu of
or in addition to shares of Common Stock, or which at any time shall be issuable
or shall have been issued in exchange for or in replacement of shares of Common
Stock or Other Securities pursuant to Section 3 or otherwise.
"Plan" means each of the Oakwood Homes Corporation Key Employee Stock
Plan and the Oakwood Homes Corporation 1997 Director Stock Option Plan.
"Significant Corporate Event" means any sale, transfer or lease of all
or substantially all of the Corporation's assets, a merger or consolidation
involving the Corporation, the repurchase by the Corporation of more than 10% of
the Corporation's capital stock, liquidation or dissolution of the Corporation
or a public offering of Common Stock.
Section 5. Representations, Warranties and Covenants as to Stock. The
Corporation represents and warrants to the Holder that all shares of Common
Stock which may be issued upon the exercise of this Warrant will, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and free from all taxes,
liens and charges with respect to the issue thereof. The Corporation covenants
to the Holder that it will (a) from time to time take all such action as may be
required to assure that the stated or par value per share of the Common Stock is
at all times no greater than the then effective Exercise Price and (b) not amend
or modify any provision of its Articles of Incorporation or by-laws in any
manner that would adversely affect in any way the powers, preferences or
relative participating, optional or other special rights of the Common Stock or
the rights of the Holder of any Warrants. The Corporation further covenants and
agrees that the Corporation will take all such action as may be required to
assure that the Corporation shall at all times have authorized and reserved,
free from preemptive rights, a sufficient number of shares of its Common Stock
to provide for the exercise of this Warrant in full. If any shares of Common
Stock reserved for the purpose of issuance upon the exercise of this Warrant
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly issued or delivered upon
exercise, then the Corporation shall at its expense in good faith and as
expeditiously as possible endeavor to secure such registration or approval, as
the case may be.
Section 6. No Shareholder Rights. This Warrant shall not entitle the
Holder to any voting rights or other rights as a shareholder of the Corporation.
Section 7. Restrictions on Transfer. Subject to applicable securities
laws this Warrant, the Warrant Shares and all rights hereunder are transferable,
in whole or in part, and from time to time, upon (i) surrender of this Warrant
properly endorsed, and (ii) delivery of a notice of transfer in the form of
Exhibit B by the Holder of its duly authorized attorney at the office of the
Corporation, the Corporation will at its expense issue to or upon the order of
the Holder a new Warrant or Warrants of like tenor in the name of such Holder or
as such Holder may direct. Each transferee and holder of this Warrant, by
accepting or holding the same, consents that this Warrant, when endorsed, in
blank, shall be deemed negotiable, and, when so endorsed, the holder hereof
shall be treated by the Corporation and all other persons dealing with this
Warrant as the absolute owner hereof for any purposes and as the person entitled
to exercise the rights represented by this Warrant, or to the transfer hereof on
the books of the Corporation, any notice to the contrary notwithstanding;
provided, however, that until each such transfer is recorded on such books, the
Corporation may treat the registered holder hereof as
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the owner hereof for all purposes. Until such time as it is no longer required
under the Act, the certificates representing the Warrant Shares shall bear the
following legend:
"The shares of Stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act"), and may not be sold or transferred in the absence
of an effective registration statement under the Act or an
opinion of counsel in form satisfactory to the Company that
such registration is not required under the Act."
Section 8. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Warrant is lost, stolen, mutilated or destroyed, the Corporation shall at its
expense (upon delivery of an indemnity agreement reasonably satisfactory in the
Corporation and, in the case of a mutilated Warrant, surrender thereof), issue a
new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Corporation, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 9. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by recognized overnight courier, prepaid, addressed as
follows:
If to the Corporation, to: Oakwood Homes Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
If to the Holder, at: Credit Suisse First Boston International
One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: Head of Credit Trading; with copies to Managing
Director - Operations Department and Head of FID - Legal &
Compliance Department
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
Section 10. Remedies. The Corporation stipulates that the remedies at
law of the Holder of this Warrant in the event of a default or threatened
default by the Corporation 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.
Section 11. Successors and Assigns. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors and assigns of the Corporation, the Holder hereof and (to the extent
provided herein) the holders of Warrant Shares issued pursuant hereto, and shall
be enforceable by any such Holder or holders.
Section 12. Modification and Severability. If, in any action before any
court or agency legally empowered to enforce any provision contained herein, any
provision hereof is found to be unenforceable, then such provision shall be
deemed modified to the extent necessary to
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make it enforceable by such court or agency. If any such provision is not
enforceable as set forth in the preceding sentence, the unenforceability of such
provision shall not affect the other provisions of this Warrant, but this
Warrant shall be construed as if such unenforceable provision had never been
contained herein.
Section 13. Governing Law. The corporate law of the State of North
Carolina shall govern all issues and questions concerning the relative rights of
the Corporation and the Holder. All other issues and questions concerning the
construction, validity, interpretation and enforcement of this Warrant shall be
governed by the laws of the State of New York (without giving effect to any laws
or rules relating to conflicts of laws that would cause the application of the
laws of any jurisdiction other than the State of New York).
Section 14. Headings. The headings of the various sections contained in
this Warrant have been inserted for convenience of reference only and should not
be deemed to be a part of this Warrant.
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* * * *
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized officer as of the date first written above.
OAKWOOD HOMES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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EXHIBIT A
FORM OF NOTICE OF ELECTION TO EXERCISE
[To be executed only upon exercise
of the Warrant to which this form is attached]
To OAKWOOD HOMES CORPORATION:
The undersigned, the holder of the Warrant to which this form is attached,
hereby irrevocably elects to exercise the right represented by such Warrant to
purchase shares of Common Stock of OAKWOOD HOMES CORPORATION, and herewith
either [circle (a) or (b)]: (a) tenders the aggregate payment of $_________ in
the form of cash, wire transfer funds, check or (b) elects to exercise its right
to acquire the Common Stock without any payment of funds as provided in Section
2 of the Warrant. The undersigned requests that a certificate for such shares be
issued in the name of , whose address is __________________, and that such
certificate be delivered to ______________________, whose address is
________________________________________.
If such number of shares is less than all of the shares purchasable
under the Warrant, the undersigned requests that a new Warrant, of like tenor as
the Warrant to which this form is attached, representing the right to purchase
the remaining balance of the shares purchasable under such current Warrant be
registered in the name of __________________, whose address is
_____________________________________, and that such new Warrant be delivered to
__________________, whose address is __________________________________________.
Signature:
-------------------------------------------------
(Signature must conform in all respects to the
name of the holder of the Warrant as specified
on the face of the Warrant)
Date:
-------------------------------------------------
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EXHIBIT B
FORM OF NOTICE OF TRANSFER
[To be executed only upon transfer
of the Warrant to which this form is attached]
For value received, the undersigned hereby sells, assigns and transfers unto
_________________________ all of the rights represented by the Warrant to which
this form is attached to purchase _________________________ shares of Common
Stock of OAKWOOD HOMES CORPORATION (the "Corporation"), to which such Warrant
relates, and appoints _________________________ as its attorney to transfer such
right on the books of the Corporation, with full power of substitution in the
premises.
Signature:
------------------------------------------
(Signature must conform in all respects
to the name of the holder of the Warrant
as specified on the face of the Warrant)
Address:
--------------------------------------------
Date:
----------------------------------------------------
Signed in the presence of:
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