THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT
AND SUCH STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION OR
QUALIFICATION THEREFROM.
|
WARRANT
NO. DBSO -1
|
September 25,
2009
|
WARRANT TO PURCHASE
1,158,087 SHARES OF COMMON
STOCK
--------------------------------
FOR VALUE RECEIVED, CONSUMER PORTFOLIO SERVICES,
INC., a California corporation (the "COMPANY"), hereby certifies
that DRAWBRDIGE SPECIAL OPPORTUNITIES FUND LP, a Delaware limited
partnership, or its assigns (the "HOLDER"), is entitled to
purchase, on the terms and subject to the conditions contained
herein, One Million, One Hundred Fifty Eight Thousand, Eighty Seven
(1,158,087) shares (the "WARRANT SHARES") of the Company’s
common stock, no par value per share ("COMMON STOCK"), at the
exercise price of $0.879 per Warrant Share (the "WARRANT PURCHASE
PRICE") at any time and from time to time during the Exercise
Period (as such term is defined below). The number of Warrant
Shares and the Warrant Purchase Price shall be subject to
adjustment as set forth in SECTION 3.
This Warrant (this "WARRANT") is the "Warrant"
referred to in, and is being issued in connection with the
consummation of the transactions contemplated by, that certain
Revolving Credit Agreement dated as of September 25, 2009, by and
among the Company, Page Four Funding LLC and Fortress Credit Corp.,
an affiliate of the initial holder of this Warrant (as amended or
modified from time to time, the "CREDIT AGREEMENT"), and is subject
to the following terms and conditions:
1. DEFINITIONS. For
the purposes of this Warrant, the following terms shall have the
respective meanings set forth below:
"APPLICABLE LAW" means all provisions of
statutes, rules and regulations, interpretations and orders of any
Governmental Authority applicable to a Person, and all orders and
decrees of all courts and arbitrators in proceedings or actions in
which the Person in question is a party including applicable
federal, state and local laws and regulations
thereunder.
"BUSINESS DAY" means any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of New York or the State of California or is a day on which
banking institutions located in either such state are authorized or
required by law or other governmental action to close.
"COMMON STOCK" has the meaning set forth in the
preamble of this Warrant.
"COMPANY" has the meaning set forth in the
preamble of this Warrant.
"CONVERTIBLE SECURITIES" means, with respect to
any Person, any securities or other obligations issued or issuable
by such Person or any other Person that are exercisable or
exchangeable for, or convertible into, any Equity Interests of the
Company.
"CURRENT MARKET PRICE" per share of Common Stock
means, as of any specified date on which the Common Stock is
publicly traded, the average of the daily market prices of the
Common Stock over the twenty (20) consecutive trading days
immediately preceding (and not including) such date. The
‘daily market price’ for each such trading day shall be
(i) the closing sales price on such day on the principal stock
exchange on which the Common Stock is then listed or admitted to
trading or on Nasdaq, as applicable, (ii) if no sale takes place on
such day on any such exchange or system, the average of the closing
bid and asked prices, regular way, on such day for the Common Stock
as officially quoted on any such exchange or system, (iii) if the
Common Stock is not then listed or admitted to trading on any stock
exchange or system, the last reported sale price, regular way, on
such day for the Common Stock, or if no sale takes place on such
day, the average of the closing bid and asked prices for the Common
Stock on such day, as reported by Nasdaq or the National Quotation
Bureau, or (iv) if the Common Stock is not then listed or admitted
to trading on any securities exchange and if no such reported sale
price or bid and asked prices are available, the average of the
reported high bid and low asked prices on such day, as reported by
a reputable quotation service, or a newspaper of general
circulation in the City of Los Angeles customarily published on
each Business Day. If the daily market price cannot be determined
for the twenty (20) consecutive trading days immediately preceding
such date in the manner specified in the foregoing sentence, then
the Common Stock shall not be deemed to be publicly traded as of
such date.
"DESIGNATED OFFICE" has the meaning set forth in
SECTION 2.1.
"DILUTIVE ISSUANCE" has the meaning set forth in
SECTION 3.9.
"DISTRIBUTION" has the meaning set forth in
SECTION 3.3.
"DISTRIBUTION AMOUNT" has the meaning set forth
in SECTION 3.3.
"DOJ" has the meaning set forth in SECTION
2.4.
"EQUITY INTERESTS" means, with respect to any
Person, (i) if such Person is a corporation, any and all shares of
capital stock, participations in profits or other equivalents
(however designated) or other equity interests of such Person,
including any preferred stock of such Person, (ii) if such Person
is a limited liability company, any and all membership interests,
or (iii) if such Person is a partnership or other entity, any and
all partnership or entity interests or other units.
"EQUITY RIGHTS" means any warrants, options or
other rights to subscribe for or purchase, or obligations to issue,
any Equity Interests of the Company, or any Convertible Securities,
or any stock appreciation rights, including any options or similar
rights issued or issuable under any employee stock option plan,
pension plan or other employee benefit plan of the
Company.
"EXCLUDED SHARES" means Common Stock, Equity
Rights or Convertible Securities issued in any of the transactions
described in SECTIONS 3.1, 3.2, 3.3 or 3.5, (ii) shares of Common
Stock issued after the Issuance Date upon conversion, exercise or
exchange of (A) Equity Rights or Convertible Securities outstanding
on the Issuance Date or (B) Equity Rights issued in connection with
an exchange and re-pricing of outstanding options issued under the
Company's 2006 Long Term Equity Incentive Plan as described in the
Company's proxy statement filed with the Securities and Exchange
Commission on June 24, 2009, and (iii) this Warrant or any
securities issued upon exercise hereof. Notwithstanding the
foregoing, shares of Common Stock, Equity Rights or Convertible
Securities, and the shares of Common Stock issuable in respect
thereof described in clauses (i) or (ii) shall not constitute
"Excluded Shares" if the terms thereof are amended or revised after
the Issuance Date.
"EXERCISE NOTICE" has the meaning set forth in
SECTION 2.1.
"EXERCISE PERIOD" means the period commencing on
the Issuance Date and ending on (and including) the Expiration
Date.
"EXPIRATION DATE" means September 25,
2019.
"FAIR MARKET VALUE" per share of Common Stock as
of any specified date means (i) if the Common Stock is publicly
traded on such date, the Current Market Price per share, or (ii) if
the Common Stock is not publicly traded (or deemed not to be
publicly traded) on such date, the fair market value per share of
Common Stock as determined in good faith by the Board of Directors
of the Company and set forth in a written notice to the Holder,
subject to the Holder’s right to dispute such determination
under SECTION 3.8(E).
"FTC" has the meaning set forth in SECTION
2.4.
"GOVERNMENTAL AUTHORITY" means any nation or
government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court,
administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government,
and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the
foregoing.
"HOLDER" has the meaning set forth in the
preamble of this Warrant.
"HSR ACT" has the meaning set forth in SECTION
2.4.
"ISSUANCE DATE" means September 25,
2009.
"NASDAQ" means the Nasdaq Stock Market or any
successor reporting system thereof.
"OTHER PROPERTY" has the meaning set forth in
SECTION 3.5.
"PERSON" means any individual, corporation,
partnership, limited liability company, joint venture, association,
joint stock company, trust (including any beneficiary
thereto),
unincorporated organization or government or any agency or
political subdivision thereof.
"REFERENCE PRICE" means the Warrant Purchase
Price.
"REGISTRATION RIGHTS AGREEMENT" shall mean a
Registration Rights Agreement dated as of the date hereof, in form
and substance satisfactory to the initial Holder, among the
Company, the initial Holder and Charles E. Bradley, Jr.
"SECURITIES ACT" means the Securities Act of
1933, as amended.
"WARRANT" means this Warrant, any amendment of
this Warrant, and any warrants issued upon transfer, division or
combination of, or in substitution for, this Warrant or any other
such warrant. All such Warrants shall at all times be identical as
to terms and conditions and date, except as to the number of
Warrant Shares for which they may be exercised.
"WARRANT PURCHASE PRICE" has the meaning set
forth in the preamble of this Warrant (as adjusted in accordance
with the terms of this Warrant).
"WARRANT SHARES" has the meaning set forth in
the preamble of this Warrant.
2.1. EXERCISE; DELIVERY
OF CERTIFICATES. Subject to the provisions of SECTION 2.4, this
Warrant may be exercised, in whole or in part, at the option of the
Holder, at any time and from time to time during the Exercise
Period, by (a) delivering to the Company at its principal executive
office (the "DESIGNATED OFFICE") (i) a notice of exercise, in
substantially the form attached hereto (the "EXERCISE NOTICE"),
duly completed and signed by the Holder, and (ii) this Warrant, and
(b) paying the Warrant Purchase Price pursuant to SECTION 2.2 for
the number of Warrant Shares proposed to be purchased in the
Exercise Notice. Subject to the provisions of SECTION 2.4, the
Warrant Shares being purchased under this Warrant will be deemed to
have been issued to the Holder, as the record owner of such Warrant
Shares, as of the close of business on the date on which payment
therefor is made by the Holder pursuant to SECTION 2.2. Stock
certificates representing the Warrant Shares so purchased shall be
delivered to the Holder within three (3) Business Days after this
Warrant has been exercised (or, if applicable, immediately after
the conditions set forth in SECTION 2.4 have been satisfied);
PROVIDED, HOWEVER, that in the case of a purchase of less than all
of the Warrant Shares issuable upon exercise of this Warrant, the
Company shall cancel this Warrant and, within three (3) Business
Days after this Warrant has been surrendered, execute and deliver
to the Holder a new Warrant of like tenor for the number of
unexercised Warrant Shares. Each stock certificate representing the
number of Warrant Shares purchased pursuant to this Warrant shall
be registered in the name of the Holder or, subject to compliance
with Applicable Laws, such other name as designated by the
Holder.
2.2. PAYMENT OF WARRANT
PRICE. Payment of the Warrant Purchase Price shall be made, at the
option of the Holder, by (i) check from the Holder, (ii) wire
transfer, (iii) instructing the Company to withhold and cancel a
number of Warrant Shares then issuable
upon exercise
of this Warrant with respect to which the excess, if any, of the
Fair Market Value over the Warrant Purchase Price for such canceled
Warrant Shares is at least equal to the Warrant Purchase Price for
the Warrant Shares being purchased, (iv) surrendering to the
Company of shares of Common Stock previously acquired by the Holder
with a Fair Market Value equal to the Warrant Purchase Price for
the Warrant Shares then being purchased or (v) any combination of
the foregoing.
2.3. NO FRACTIONAL
SHARES. The Company shall not be required to issue fractional
shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would, except for the
provisions of this paragraph, be issuable on the exercise of this
Warrant (or specified portion thereof), the Company shall pay to
the Holder an amount in cash calculated by it to be equal to the
then Fair Market Value per share of Common Stock multiplied by such
fraction computed to the nearest whole cent.
2.4. ANTITRUST
NOTIFICATION. If the Holder determines, in its sole judgment upon
the advice of counsel, that an exercise of this Warrant pursuant to
the terms hereof is subject to the provisions of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR ACT"), the Holder shall notify the Company, and the
Company and the Holder shall, prior to the payment of the Warrant
Purchase Price, file with the United States Federal Trade
Commission (the "FTC") and the United States Department of Justice
(the "DOJ") the notification and report form, if any, required in
connection with the exercise of this Warrant, and any supplemental
information required in connection therewith, pursuant to the HSR
Act. Any information required to be provided by or with respect to
the Company shall be provided by the Company within seven (7)
Business Days after receiving notification from the Holder of the
applicability of the HSR Act. Any such notification, report form
and supplemental information will be in full compliance with the
requirements of the HSR Act. The Company will furnish to the Holder
such necessary information and such assistance as the Holder may
reasonably request in connection with the preparation of any filing
or submission which is necessary under the HSR Act.
The Company shall respond promptly after
receiving any inquiries or requests for additional information from
the FTC or the DOJ (and in no event more than five (5) Business
Days after receipt of such inquiry or request). The Company shall
keep the Holder apprised of the status of any communications with,
and any inquiries or requests for additional information from, the
FTC or the DOJ, and shall respond promptly to any such inquiries or
requests. The Company shall bear all filing or other fees required
to be paid by the Company and the Holder (or the "ultimate parent
entity" of the Holder, if any) under the HSR Act or any other
Applicable Law and the Company shall bear all costs and expenses
(including, without limitation, attorneys’ fees) incurred by
the Company and the Holder (or the "ultimate parent entity" of the
Holder, if any) in connection with the preparation of such filings,
responses to inquiries or requests and compliance with the HSR Act
and other Applicable Laws. In the event that this SECTION 2.4 is
applicable to any exercise of this Warrant, the purchase of the
Warrant Shares subject to the Exercise Notice, and the payment of
the Warrant Purchase Price, will be subject to the expiration or
earlier termination of the waiting period under the HSR
Act.
3. ADJUSTMENTS TO THE
NUMBER OF WARRANT SHARES AND TO THE WARRANT PURCHASE PRICE. The
number of Warrant Shares for which this Warrant is
exercisable and
the Warrant Purchase Price shall be subject to adjustment from time
to time as set forth in this SECTION 3.
3.1. STOCK DIVIDENDS,
SUBDIVISIONS AND COMBINATIONS. If at any time the
Company:
(a) pays a dividend or
other distribution on its Common Stock in shares of Common Stock or
shares of any other class or series of Capital Stock;
(b) subdivides its
outstanding shares of Common Stock (by stock split,
reclassification or otherwise) into a larger number of shares of
Common Stock; or
(c) combines (by
reverse stock split or otherwise) its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then the
number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior to the record date for such dividend or
distribution or the effective date of such subdivision or
combination shall be adjusted so that the Holder shall thereafter
be entitled to receive upon exercise of this Warrant the kind and
number of shares of Common Stock that the Holder would have owned
or have been entitled to receive immediately after such record date
or effective date had this Warrant been exercised immediately prior
to such record date or effective date. Any adjustment made pursuant
to this SECTION 3.1 shall become effective immediately after the
effective date of such event, but be retroactive to the record
date, if any, for such event.
Upon any adjustment of the number of Warrant
Shares purchasable upon the exercise of this Warrant as herein
provided, the Warrant Purchase Price per share shall be adjusted by
multiplying the Warrant Purchase Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the
number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment and the denominator of
which shall be the number of Warrant Shares so purchasable
immediately thereafter.
3.2. RIGHTS; OPTIONS;
WARRANTS. If, at any time after the Issuance Date, the Company
issues (without payment of any consideration) to all holders of
outstanding Common Stock any rights, options or warrants to
subscribe for or purchase shares of Common Stock or securities
convertible into or exchangeable for Common Stock, then the Company
shall also distribute, at the same time as the distribution to such
holders, such rights, options, warrants or securities to the Holder
as if this Warrant had been exercised immediately prior to the
record date for such issuance.
3.3. DISTRIBUTION OF
ASSETS OR SECURITIES. If at any time the Company makes a
distribution (other than a distribution covered by SECTION 3.1 or
3.2) to its shareholders of any asset, including cash or securities
(such distribution, a "DISTRIBUTION", and the total of the cash,
assets or securities so distributed, the "DISTRIBUTION AMOUNT"),
then, at the Holder’s option:
(i) the Holder shall
have the right to receive an amount of assets, including cash or
securities equal to the number of Warrant Shares for which this
Warrant is exercisable immediately prior to the Distribution,
multiplied by the Distribution Amount, divided by the number of
shares of Common Stock outstanding at such time. Upon the closing
of the
Distribution,
the Company shall distribute such portion of the Distribution
Amount to the Holder; or
(ii) the Warrant
Purchase Price shall be adjusted and shall be equal to the Warrant
Purchase Price in effect immediately prior to the close of business
on the date fixed for the determination of shareholders entitled to
receive such distribution, multiplied by a fraction (which shall
not be less than zero), the numerator of which shall be the Fair
Market Value per share of Common Stock on the date fixed for such
determination, less the amount of cash, the then-fair market value
of the portion of the assets, or the fair market value of the
portion of the securities, as the case may be (as determined in
good faith by the Board of Directors of the Company, subject to the
Holder’s rights under SECTION 3.8(E)), so distributed
applicable to one share of Common Stock, and the denominator of
which shall be the Fair Market Value per share of Common Stock.
Such adjustment to the Warrant Purchase Price shall become
effective immediately prior to the opening of business on the day
immediately following the date fixed for the determination of
shareholders entitled to receive such distribution. Upon any
adjustment to the Warrant Purchase Price as provided for in this
SECTION 3.3(ii), the number of Warrant Shares issuable upon the
exercise of this Warrant shall also be adjusted and shall be equal
to the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such adjustment multiplied by a
fraction, the numerator of which is the Warrant Purchase Price in
effect immediately prior to such adjustment and the denominator of
which is the Warrant Purchase Price as so adjusted.
3.4. ISSUANCE OF EQUITY
SECURITIES AT LESS THAN FAIR MARKET VALUE OR WARRANT PURCHASE
PRICE.
(a) If, at any time
after Issuance Date, the Company shall issue or sell (or, in
accordance with SECTION 3.4(b), shall be deemed to have issued or
sold) shares of Common Stock, Equity Rights or Convertible
Securities representing the right to subscribe for or purchase
shares of Common Stock (other than any Excluded Shares) at a price
per share of Common Stock that is lower than the Reference Price in
effect immediately prior to such sale and issuance, then the
Warrant Purchase Price shall be adjusted so that it shall equal the
price determined by multiplying the Warrant Purchase Price in
effect immediately prior thereto by a fraction, the numerator of
which shall be an amount equal to the sum of (A) the number of
shares of Common Stock outstanding immediately prior to such sale
and issuance plus (B) the number of shares of Common Stock which
the aggregate consideration received by the Company (and in the
case of adjustments triggered in full or in part by the issuance of
Equity Rights or Convertible Securities, the aggregate
consideration deemed received in respect of such issuance
determined as provided in SECTION 3.4(b) below) for such sale or
issuance would purchase at such Reference Price per share, and the
denominator of which shall be the total number of shares of Common
Stock outstanding (and in the case of adjustments triggered in full
or in part by the issuance of Equity Rights or Convertible
Securities, the number of shares of Common Stock deemed to be
outstanding as a result of such issuance determined as provided in
SECTION 3.4(b) below) immediately after such sale or
issuance.
Adjustments shall be made successively whenever
such an issuance is made. Upon any adjustment in the Warrant
Purchase Price as provided in this SECTION 3.4(a), the number of
shares of Common Stock purchasable upon the exercise of this
Warrant shall also be
adjusted and
shall be that number determined by multiplying the number of
War