Exhibit 4.1
NEITHER THIS STOCK PURCHASE WARRANT NOR THE SHARES THAT MAY BE
PURCHASED HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1993, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND LAW, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND LAW. THIS STOCK PURCHASE
WARRANT AND THE SHARES THAT MAY BE PURCHASED HEREUNDER MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED
HEREIN.
ORIGEN FINANCIAL, INC.
STOCK PURCHASE WARRANT
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| Date of Issuance: April 8,
2008 |
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Certificate No. W-2 |
THIS IS TO CERTIFY that the
William M. Davidson Trust u/a/d 12/13/04 and its transferees,
successors and assigns (the “ Holder ”), for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, is entitled to purchase from Origen
Financial, Inc., a Delaware corporation (the “ Company
”), at the price of $1.22 per share, the closing consolidated
bid price of the Company’s common stock, $0.01 par value per
share (“ Common Stock ”) at 4:00 pm
(EST) on the trading date immediately prior to the date hereof
(the “ Exercise Price ”), at any time after the
date hereof (the “ Commencement Date ”) and
expiring on April 8, 2013 (the “ Expiration Date
”), Two Million Six Hundred Thousand (2,600,000) shares of
Common Stock (as such number may be adjusted as provided herein,
the “ Warrant Shares ”).
Capitalized terms used herein shall
have the meanings ascribed to such terms in Section 10
hereof unless otherwise defined herein.
1. The Warrant; Transfer and
Exchange .
(a) The Warrant . This Stock
Purchase Warrant (“ Warrant ”) and the rights
and privileges of the Holder hereunder may be exercised by the
Holder in whole or in part as provided herein, and, subject to
Sections 1(b) and 7 hereof, may, subject to this
Warrant, be transferred by the Holder to any other Person or
Persons who meet the requirements set forth herein or therein at
any time or from time to time, in whole or in part.
(b) Transfer and Exchanges .
The Company shall initially record this Warrant on a register to be
maintained by the Company with its other books and subject to
Section 7 hereof, from time to time thereafter shall reflect
the transfer of this Warrant on such register when surrendered for
transfer in accordance with the terms hereof and properly endorsed,
accompanied by appropriate instructions, and further accompanied by
payment in cash or by check, bank draft or money order payable to
the order of the Company, in United States currency, of an amount
equal to any stamp or other tax or governmental charge or fee
required to be paid in connection with the transfer thereof.
Upon any such
transfer, a new warrant or warrants shall be issued to the
transferee and the Holder (in the event this Warrant is only
partially transferred) and the surrendered warrant shall be
canceled. This Warrant may be exchanged at the option of the
Holder, when surrendered at the Principal Office of the Company,
for another warrant or other warrants of like tenor and
representing in the aggregate the right to purchase a like number
of shares of Common Stock.
2. Exercise .
(a) Right to Exercise . At any
time after the Commencement Date and on or before the Expiration
Date, the Holder, in accordance with the terms hereof, may exercise
this Warrant, in whole at any time or in part from time to time, by
delivering this Warrant to the Company during normal business hours
on any Business Day at the Company’s Principal Office,
together with the Notice of Exercise, in the form attached hereto
as Exhibit A and made a part hereof (the “ Notice
of Exercise ”), duly executed, and payment of the
Exercise Price per share for each share purchased, as specified in
the Notice of Exercise. The aggregate Exercise Price (the “
Aggregate Exercise Price ”) to be paid for the shares
to be purchased (the “ Exercise Amount ”) shall
equal the product of (i) the Exercise Amount multiplied by
(ii) the Exercise Price. If the Expiration Date is not a
Business Day, then this Warrant may be exercised on the next
succeeding Business Day.
(b) Payment of the Aggregate
Exercise Price . Payment of the Aggregate Exercise Price shall
be made to the Company in cash or other immediately available
funds.
(c) Issuance of Shares of Common
Stock . Upon receipt by the Company of this Warrant at its
Principal Office in proper form for exercise, and accompanied by
the Notice of Exercise and payment of the Aggregate Exercise Price
as aforesaid, the Holder shall be deemed to be the holder of record
of the shares of Common Stock issuable upon such exercise,
notwithstanding that certificates representing such shares of
Common Stock may not then be actually delivered. Within ten
(10) Business Days after such surrender of this Warrant,
delivery of the Notice of Exercise and payment of the Aggregate
Exercise Price as aforesaid, the Company shall issue and cause to
be delivered to, or upon the written order of, the Holder (and in
such name or names as the Holder may designate) a certificate or
certificates for the Exercise Amount.
(d) Fractional Shares . The
Company shall not be required to deliver fractions of shares of
Common Stock upon exercise of this Warrant. If any fraction of a
share of Common Stock would be deliverable upon an exercise of this
Warrant, the Company shall, in lieu of delivering such fraction of
a share of Common Stock, make a cash payment to the Holder in an
amount equal to the same fraction of the Market Price Per Share
determined as of the Business Day immediately preceding the date of
exercise of this Warrant.
(e) Partial Exercise . In the
event of a partial exercise of this Warrant, the Company shall
issue to the Holder a Warrant in like form for the unexercised
portion thereof which has not expired.
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3. Payment of Taxes .
The Company shall pay all stamp taxes attributable to the initial
issuance of shares or other securities issuable upon the exercise
of this Warrant or issuable pursuant to Section 6
hereof, excluding any tax or taxes which may be payable because of
the transfer involved in the issuance or delivery of any
certificates for shares or other securities in a name other than
that of the Holder in respect of which such shares or securities
are issued.
4. Replacement Warrant .
In case this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue and deliver in exchange and substitution for
and upon cancellation of the mutilated Warrant, or in lieu of and
in substitution for this Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction of such Warrant
and upon receipt of indemnity reasonably satisfactory to the
Company provided that if the Holder is a financial institution or
other institutional or fund investor its own agreement shall be
satisfactory.
5. Covenants .
(a) Reservation of Shares .
The Company shall at all times reserve and keep available out of
the aggregate of its authorized but unissued shares such number of
its duly authorized shares of Common Stock as shall be sufficient
to enable the Company to issue Common Stock upon exercise of this
Warrant.
(b) Validly Issued Shares .
The Company covenants that all shares of Common Stock that may be
issued upon exercise of this Warrant, assuming full payment of the
Aggregate Exercise Price (including those issued pursuant to
Section 6 hereof) shall, upon delivery by the Company,
be duly authorized and validly issued, fully paid and
nonassessable, free from all stamp taxes, liens and charges with
respect to the issue or delivery thereof and otherwise free of all
other security interests, encumbrances and claims of any nature
whatsoever (other than security interests, encumbrances and claims
to which the Holder is subject prior to the issuance of this
Warrant (or the issuance of any shares of Common Stock pursuant to
Section 6 hereof) and other transfer restrictions
described herein).
(c) Performance. The Company
will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, share exchange, dissolution or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, including, without
limitation, the adjustments required under Section 6
hereof
(d) Dividends . At all times
prior to the earlier of the exercise of this Warrant in full or the
Expiration Date of this Warrant, the Company shall not declare or
pay any dividend or distribution that, when taken together with all
other dividends declared and paid for the taxable year in which the
subject dividend is declared and paid, would exceed one hundred per
cent (100%) of the Company’s REIT taxable net income for that
taxable year; provided, however, that if the Company obtains the
approval of the stockholders of the Company in accordance with
Rule 4350 of the Nasdaq Marketplace Rules to grant to the
Holder customary anti-dilution protection that would provide for an
adjustment to the
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Exercise Price
by reducing the Exercise Price to the weighted average of the price
of any Common Stock sold at below the Exercise Price then in effect
(with customary exceptions) (“ Stockholder Approval
”), then this Section 5(d) shall, on the date of
such Stockholder Approval, but not prior thereto, become null and
void and shall no longer be of any force or effect, and the Company
shall amend this Warrant promptly to grant to the Holder such
weighted average anti-dilution protection.
6. Adjustment of Exercise
Price and Number of Shares of Common Stock . The Exercise Price
and the number of shares of Common Stock purchasable upon the
exercise of this Warrant shall be subject to adjustment from time
to time upon the occurrence of certain events described in this
Section 6 . Upon each adjustment of the Exercise Price,
the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the
number of shares of Common Stock obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by
the number of shares of Common Stock purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product
thereof by the Exercise Price resulting from such adjustment:
(a) Stock Dividends; Subdivisions
and Combinations . In case at any time or from time to time the
Company shall:
(A) issue
to the holders of its Common Stock a dividend payable in, or other
distribution of, shares of Common Stock (a “ Stock
Dividend ”),
(B) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, including, without
limitation, by means of a stock split (a “ Stock
Subdivision ”), or
(C) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock (a “ Stock
Combination ”),
then the number
of shares of Common Stock purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder
shall thereafter be entitled after the completion of each such
event to receive the kind and number of shares of Common Stock or
other securities of the Company that the Holder would have owned or
have been entitled to receive after the happening of each such
event, had this Warrant been exercised immediately prior to the
happening of each such event or any record date with respect
thereto.
(b) Miscellaneous . The
following provisions shall be applicable to the making of
adjustments provided above in Section 6(a):
(A) The adjustments required by
Section 6(a) shall be made whenever and as often as any
specified event requiring an adjustment shall occur. For the
purpose of any adjustment, any specified event shall be deemed to
have occurred at the close of business on the date of its
occurrence.
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(B) In computing adjustments under
Section 6(a), fractional interests in Common Stock
shall be disregarded.
(C) If the Company shall take a
record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or distribution or
subscription or purchase rights and shall, thereafter and before
the distribution to stockholders thereof, legally abandon its plan
to pay or deliver such dividend, distribution, subscription or
purchase rights, then no adjustment shall be required by reason of
the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
(c) Changes in Common Stock .
If at any time the Company shall initiate any transaction or be a
party to any transaction (including, without limitation, a merger,
amalgamation, reorganization, consolidation, share exchange, sale,
lease or other disposition of all or substantially all of the
Company’s assets, liquidation, recapitalization or
reclassification of the Common Stock) in connection with which the
shares of Common Stock shall be changed into or exchanged for
different securities of the Company or capital stock or other
securities of another corporation or interests in a non-corporate
entity or other property (including cash) or any combination of the
foregoing (each such transaction being herein called a “
Transaction ”), then as a condition of the
consummation of the Transaction, lawful enforceable and ad
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