Exhibit 4.2
WARRANT TO PURCHASE COMMON
STOCK
THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS
ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS
OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE
SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS
ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS
INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN
COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
20,500,413
Shares of Common
Stock
of DISCOVER FINANCIAL
SERVICES
Issue Date: March 13,
2009
1. Definitions . Unless the
context otherwise requires, when used herein the following terms
shall have the meanings indicated.
“Affiliate” has the meaning ascribed to it in the Purchase
Agreement.
“Appraisal
Procedure” means a
procedure whereby two independent appraisers, one chosen by the
Company and one by the Original Warrantholder, shall mutually agree
upon the determinations then the subject of appraisal. Each party
shall deliver a notice to the other appointing its appraiser within
15 days after the Appraisal Procedure is invoked. If within 30 days
after appointment of the two appraisers they are unable to agree
upon the amount in question, a third independent appraiser shall be
chosen within 10 days thereafter by the mutual consent of such
first two appraisers. The decision of the third appraiser so
appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be
appointed and the determination of one appraiser is disparate from
the middle determination by more than twice the amount by which the
other determination is disparate from the middle determination,
then the
determination of such appraiser shall be
excluded, the remaining two determinations shall be averaged and
such average shall be binding and conclusive upon the Company and
the Original Warrantholder; otherwise, the average of all three
determinations shall be binding upon the Company and the Original
Warrantholder. The costs of conducting any Appraisal Procedure
shall be borne by the Company.
“Board of
Directors” means
the board of directors of the Company, including any duly
authorized committee thereof.
“Business
Combination” means
a merger, consolidation, statutory share exchange or similar
transaction that requires the approval of the Company’s
stockholders.
“business
day” means any day
except Saturday, Sunday and any day on which banking institutions
in the State of New York generally are authorized or required by
law or other governmental actions to close.
“Capital
Stock” means
(A) with respect to any Person that is a corporation or
company, any and all shares, interests, participations or other
equivalents (however designated) of capital or capital stock of
such Person and (B) with respect to any Person that is not a
corporation or company, any and all partnership or other equity
interests of such Person.
“Charter”
means, with respect to any Person,
its certificate or articles of incorporation, articles of
association, or similar organizational document.
“Common
Stock” has the
meaning ascribed to it in the Purchase Agreement.
“Company”
means the Person whose name,
corporate or other organizational form and jurisdiction of
organization is set forth in Item 1 of Schedule A
hereto.
“conversion” has the meaning set forth in
Section 13(B).
“convertible
securities” has the
meaning set forth in Section 13(B).
“CPP”
has the meaning ascribed to it in
the Purchase Agreement.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated
thereunder.
“Exercise
Price” means the
amount set forth in Item 2 of Schedule A hereto.
“Expiration
Time” has the
meaning set forth in Section 3.
“Fair Market
Value” means, with
respect to any security or other property, the fair market value of
such security or other property as determined by the Board of
Directors, acting in good faith or, with respect to
Section 14, as determined by the Original Warrantholder acting
in good faith. For so long as the Original Warrantholder holds this
Warrant or any portion thereof, it may object in writing to the
Board of
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Director’s
calculation of fair market value within 10 days of receipt of
written notice thereof. If the Original Warrantholder and the
Company are unable to agree on fair market value during the 10-day
period following the delivery of the Original Warrantholder’s
objection, the Appraisal Procedure may be invoked by either party
to determine Fair Market Value by delivering written notification
thereof not later than the 30 th day after delivery of the
Original Warrantholder’s objection.
“Governmental
Entities” has the
meaning ascribed to it in the Purchase Agreement.
“Initial
Number” has the
meaning set forth in Section 13(B).
“Issue
Date” means the
date set forth in Item 3 of Schedule A hereto.
“Market
Price” means, with
respect to a particular security, on any given day, the last
reported sale price regular way or, in case no such reported sale
takes place on such day, the average of the last closing bid and
ask prices regular way, in either case on the principal national
securities exchange on which the applicable securities are listed
or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the closing bid
and ask prices as furnished by two members of the Financial
Industry Regulatory Authority, Inc. selected from time to time by
the Company for that purpose. “Market Price” shall be
determined without reference to after hours or extended hours
trading. If such security is not listed and traded in a manner that
the quotations referred to above are available for the period
required hereunder, the Market Price per share of Common Stock
shall be deemed to be (i) in the event that any portion of the
Warrant is held by the Original Warrantholder, the fair market
value per share of such security as determined in good faith by the
Original Warrantholder or (ii) in all other circumstances, the
fair market value per share of such security as determined in good
faith by the Board of Directors in reliance on an opinion of a
nationally recognized independent investment banking corporation
retained by the Company for this purpose and certified in a
resolution to the Warrantholder. For the purposes of determining
the Market Price of the Common Stock on the “trading
day” preceding, on or following the occurrence of an event,
(i) that trading day shall be deemed to commence immediately
after the regular scheduled closing time of trading on the New York
Stock Exchange or, if trading is closed at an earlier time, such
earlier time and (ii) that trading day shall end at the next
regular scheduled closing time, or if trading is closed at an
earlier time, such earlier time (for the avoidance of doubt, and as
an example, if the Market Price is to be determined as of the last
trading day preceding a specified event and the closing time of
trading on a particular day is 4:00 p.m. and the specified event
occurs at 5:00 p.m. on that day, the Market Price would be
determined by reference to such 4:00 p.m. closing
price).
“Ordinary Cash
Dividends” means a
regular quarterly cash dividend on shares of Common Stock out of
surplus or net profits legally available therefor (determined in
accordance with generally accepted accounting principles in effect
from time to time), provided that Ordinary Cash Dividends
shall not include any cash dividends paid subsequent to the Issue
Date to the extent the aggregate per share dividends paid on
the
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outstanding Common Stock in any quarter exceed
the amount set forth in Item 4 of Schedule A hereto, as
adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.
“Original
Warrantholder” means the United States Department of the
Treasury. Any actions specified to be taken by the Original
Warrantholder hereunder may only be taken by such Person and not by
any other Warrantholder.
“Permitted
Transactions” has
the meaning set forth in Section 13(B).
“Person”
has the meaning given to it in
Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act.
“Per Share Fair Market
Value” has the
meaning set forth in Section 13(C).
“Preferred
Shares” means the
perpetual preferred stock issued to the Original Warrantholder on
the Issue Date pursuant to the Purchase Agreement.
“Pro Rata
Repurchases” means
any purchase of shares of Common Stock by the Company or any
Affiliate thereof pursuant to (A) any tender offer or exchange
offer subject to Section 13(e) or 14(e) of the Exchange Act or
Regulation 14E promulgated thereunder or (B) any other offer
available to substantially all holders of Common Stock, in the case
of both (A) or (B), whether for cash, shares of Capital Stock
of the Company, other securities of the Company, evidences of
indebtedness of the Company or any other Person or any other
property (including, without limitation, shares of Capital Stock,
other securities or evidences of indebtedness of a subsidiary), or
any combination thereof, effected while this Warrant is
outstanding. The “Effective Date” of a Pro Rata
Repurchase shall mean the date of acceptance of shares for purchase
or exchange by the Company under any tender or exchange offer which
is a Pro Rata Repurchase or the date of purchase with respect to
any Pro Rata Repurchase that is not a tender or exchange
offer.
“Purchase
Agreement” means
the Securities Purchase Agreement – Standard Terms
incorporated into the Letter Agreement, dated as of the date set
forth in Item 5 of Schedule A hereto, as amended from time to
time, between the Company and the United States Department of the
Treasury (the “Letter Agreement” ), including
all annexes and schedules thereto.
“Qualified Equity
Offering” has the
meaning ascribed to it in the Purchase Agreement.
“Regulatory
Approvals” with
respect to the Warrantholder, means, to the extent applicable and
required to permit the Warrantholder to exercise this Warrant for
shares of Common Stock and to own such Common Stock without the
Warrantholder being in violation of applicable law, rule or
regulation, the receipt of any necessary approvals and
authorizations of, filings and registrations with, notifications
to, or expiration or termination of any applicable waiting period
under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder.
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“SEC”
means the U.S. Securities and
Exchange Commission.
“Securities
Act” means the
Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.
“Shares”
has the meaning set forth in
Section 2.
“trading
day” means
(A) if the shares of Common Stock are not traded on any
national or regional securities exchange or association or
over-the-counter market, a business day or (B) if the shares
of Common Stock are traded on any national or regional securities
exchange or association or over-the-counter market, a business day
on which such relevant exchange or quotation system is scheduled to
be open for business and on which the shares of Common Stock
(i) are not suspended from trading on any national or regional
securities exchange or association or over-the-counter market for
any period or periods aggregating one half hour or longer; and
(ii) have traded at least once on the national or regional
securities exchange or association or over-the-counter market that
is the primary market for the trading of the shares of Common
Stock.
“U.S.
GAAP” means United
States generally accepted accounting principles.
“Warrantholder”
has the meaning set forth in
Section 2.
“Warrant”
means this Warrant, issued pursuant
to the Purchase Agreement.
2. Number of Shares; Exercise
Price . This certifies that, for value received, the United
States Department of the Treasury or its permitted assigns (the
“Warrantholder” ) is entitled, upon the terms
and subject to the conditions hereinafter set forth, to acquire
from the Company, in whole or in part, after the receipt of all
applicable Regulatory Approvals, if any, up to an aggregate of the
number of fully paid and nonassessable shares of Common Stock set
forth in Item 6 of Schedule A hereto, at a purchase price per
share of Common Stock equal to the Exercise Price. The number of
shares of Common Stock (the “Shares” ) and the
Exercise Price are subject to adjustment as provided herein, and
all references to “Common Stock,” “Shares”
and “Exercise Price” herein shall be deemed to include
any such adjustment or series of adjustments.
3. Exercise of Warrant; Term
. Subject to Section 2, to the extent permitted by applicable
laws and regulations, the right to purchase the Shares represented
by this Warrant is exercisable, in whole or in part by the
Warrantholder, at any time or from time to time after the execution
and delivery of this Warrant by the Company on the date hereof, but
in no event later than 5:00 p.m., New York City time on the tenth
anniversary of the Issue Date (the “Expiration
Time” ), by (A) the surrender of this Warrant and
Notice of Exercise annexed hereto, duly completed and executed on
behalf of the Warrantholder, at the principal executive office of
the Company located at the address set forth in Item 7 of
Schedule A hereto (or such other office or agency of the Company in
the United States as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the
books of the Company), and (B) payment of the Exercise Price
for the Shares thereby purchased:
(i) by having the Company withhold,
from the shares of Common Stock that would otherwise be delivered
to the Warrantholder upon such exercise, shares of Common stock
issuable upon exercise of the Warrant equal in value to the
aggregate Exercise Price as to which this Warrant is so exercised
based on the Market Price of the Common Stock on the trading day on
which this Warrant is exercised and the Notice of Exercise is
delivered to the Company pursuant to this Section 3,
or
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(ii) with the consent of both the
Company and the Warrantholder, by tendering in cash, by certified
or cashier’s check payable to the order of the Company, or by
wire transfer of immediately available funds to an account
designated by the Company.
If the Warrantholder does not
exercise this Warrant in its entirety, the Warrantholder will be
entitled to receive from the Company within a reasonable time, and
in any event not exceeding three business days, a new warrant in
substantially identical form for the purchase of that number of
Shares equal to the difference between the number of Shares subject
to this Warrant and the number of Shares as to which this Warrant
is so exercised. Notwithstanding anything in this Warrant to the
contrary, the Warrantholder hereby acknowledges and agrees that its
exercise of this Warrant for Shares is subject to the condition
that the Warrantholder will have first received any applicable
Regulatory Approvals.
4. Issuance of Shares;
Authorization; Listing . Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as
the Warrantholder may designate and will be delivered to such named
Person or Persons within a reasonable time, not to exceed three
business days after the date on which this Warrant has been duly
exercised in accordance with the terms of this Warrant. The Company
hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued,
fully paid and nonassessable and free from all taxes, liens and
charges (other than liens or charges created by the Warrantholder,
income and franchise taxes incurred in connection with the exercise
of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as
of the close of business on the date on which this Warrant and
payment of the Exercise Price are delivered to the Company in
accordance with the terms of this Warrant, notwithstanding that the
stock transfer books of the Company may then be closed or
certificates representing such Shares may not be actually delivered
on such date. The Company will at all times reserve and keep
available, out of its authorized but unissued Common Stock, solely
for the purpose of providing for the exercise of this Warrant, the
aggregate number of shares of Common Stock then issuable upon
exercise of this Warrant at any time. The Company will
(A) procure, at its sole expense, the listing of the Shares
issuable upon exercise of this Warrant at any time, subject to
issuance or notice of issuance, on all principal stock exchanges on
which the Common Stock is then listed or traded and
(B) maintain such listings of such Shares at all times after
issuance. The Company will use reasonable best efforts to ensure
that the Shares may be issued without violation of any applicable
law or regulation or of any requirement of any securities exchange
on which the Shares are listed or traded.
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5. No Fractional Shares or
Scrip . No fractional Shares or scrip representing fractional
Shares shall be issued upon any exercise of this Warrant. In lieu
of any fractional Share to which the Warrantholder would otherwise
be entitled, the Warrantholder shall be entitled to receive a cash
payment equal to the Market Price of the Common Stock on the last
trading day preceding the date of exercise less the pro-rated
Exercise Price for such fractional share.
6. No Rights as Stockholders;
Transfer Books . This Warrant does not entitle the
Warrantholder to any voting rights or other rights as a stockholder
of the Company prior to the date of exercise hereof. The Company
will at no time close its transfer books against transfer of this
Warrant in any manner which interferes with the timely exercise of
this Warrant.
7. Charges, Taxes and
Expenses . Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made
without charge to the Warrantholder for any issue or transfer tax
or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company.
8. Transfer/Assignment
.
(A) Subject to compliance with
clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of
the Company by the registered holder hereof in person or by duly
authorized attorney, and a new warrant shall be made and delivered
by the Company, of the same tenor and date as this Warrant but
registered in the name of one or more transferees, upon surrender
of this Warrant, duly endorsed, to the office or agency of the
Company described in Se
