EXHIBIT 10.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE ACT OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO PRICE ENTERPRISES, INC., QUALIFIES AS AN EXEMPT
TRANSACTION UNDER THE ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
PRICE ENTERPRISES, INC.
COMMON STOCK PURCHASE WARRANT
Price Enterprises, Inc., a Maryland corporation (the "Company"), hereby
certifies that, for value received, Warburg, Xxxxxx Equity Partners, L.P. (the
"Holder"), or assigns, is entitled to purchase from the Company, subject to the
terms set forth below and in the Securities Purchase Agreement, dated as of
March __, 2001, by and among the Holder, the Company and certain parties named
therein (the "Purchase Agreement"), at any time and from time to time during the
period beginning on ____________, 2001 and ending on _____________, 2008 (the
"Expiration Date"), in whole or in part, an aggregate of two million five
hundred thousand (2,500,000) fully paid and non-assessable shares of Common
Stock, par value $.0001 per share ("Common Stock"), of the Company, at a
purchase price, subject to the provisions of Section 3 hereof, of $8.25 per
share (the "Purchase Price"). This Warrant is herein called the "Warrant."
1. EXERCISE OF WARRANT. The purchase rights evidenced by this Warrant shall
be exercised by the Holder surrendering this Warrant, with the form of
subscription at the end hereof duly executed by the Holder, to the Company at
its office at 00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, accompanied by payment of an amount (the "Exercise Payment") equal to the
Purchase Price multiplied by the number of shares being purchased pursuant to
such exercise, payable as follows: (a) by payment to the Company in cash, by
certified or official bank check, or by wire transfer of the Exercise Payment,
(b) at the option of the Company, by surrender to the Company for cancellation
of securities of the Company having a Market Price (as hereinafter defined) on
the date of exercise equal to the Exercise Payment; or (c) at the option of the
Company, by a combination of the methods described in clauses (a) and (b) above.
For purposes hereof, the term "Market Price" shall mean the average sales price
on the most recent trading day ending prior to the relevant time as reported on
the Nasdaq National Market of the applicable capital stock of the Company, or if
not then traded on the Nasdaq National Market, such average sales price as
reported on any exchange or quotation system over which the applicable capital
stock of the Company may be traded, or if not then traded over any exchange or
quotation system, then the market price of the applicable capital stock of the
Company on the relevant date as determined in good faith by the Board of
Directors of the Company.
1.1. PARTIAL EXERCISE. This Warrant may be exercised for less than the full
number of shares of Common Stock, in which case the number of shares receivable
upon the
exercise of this Warrant as a whole, and the sum payable upon the exercise of
this Warrant as a whole, shall be proportionately reduced. Upon any such partial
exercise, the Company at its expense will forthwith issue to the holder hereof a
new Warrant or Warrants of like tenor calling for the number of shares of Common
Stock as to which rights have not been exercised, such Warrant or Warrants to be
issued in the name of the holder hereof or his nominee (upon payment by such
holder of any applicable transfer taxes).
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after
the exercise of this Warrant and payment of the Purchase Price, and in any event
within ten (10) business days thereafter, the Company, at its expense, will
cause to be issued in the name of and delivered to the Holder a certificate or
certificates for the number of fully paid and non-assessable shares of Common
Stock to which the Holder shall be entitled upon such exercise, plus, in lieu of
any fractional share to which such holder would otherwise be entitled, cash in
an amount determined in accordance with Paragraph 3.9 hereof. The Company agrees
that the shares so purchased shall be deemed to be issued to the Holder as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such shares as
aforesaid.
3. ANTI-DILUTION PROVISIONS AND OTHER ADJUSTMENTS. In order to prevent
dilution of the right granted hereunder, the Purchase Price shall be subject to
adjustment from time to time in accordance with this Paragraph 3. Upon each
adjustment of the Purchase Price pursuant to this Paragraph 3, the registered
Holder of this Warrant shall thereafter be entitled to acquire upon exercise, at
the Purchase Price resulting from such adjustment, the number of shares of
Common Stock obtainable by multiplying the Purchase Price in effect immediately
prior to such adjustment by the number of shares of Common Stock acquirable
immediately prior to such adjustment and dividing the product thereof by the
Purchase Price resulting from such adjustment.
3.1. ADJUSTMENT FOR ISSUE OR SALE OF COMMON STOCK AT LESS THAN MARKET
PRICE. Except as provided in Paragraph 3.2 or 3.5 below, if and whenever on or
after the date of issuance hereof the Company shall issue or sell, or shall in
accordance with subparagraphs 3.1(1) to (9), inclusive, be deemed to have issued
or sold, any shares of its Common Stock for a consideration per share less than
the Market Price in effect immediately prior to the time of such issue or sale,
then forthwith upon such issue or sale (the "Triggering Transaction"), the
Purchase Price shall, subject to subparagraphs (1) to (9) of this Paragraph 3.1,
be reduced to the Purchase Price (calculated to the nearest tenth of a cent)
determined by dividing:
(i) an amount equal to the sum of (x) the product derived by
multiplying the Number of Common Shares Deemed Outstanding immediately
prior to such Triggering Transaction by the Purchase Price then in effect,
plus (y) the consideration, if any, received by the Company upon
consummation of such Triggering Transaction, by
(ii) an amount equal to the sum of (x) the Number of Common Shares
Deemed Outstanding immediately prior to such Triggering Transaction plus
(y) the number of shares of Common Stock issued (or deemed to be issued in
accordance with subparagraphs 3.1(1) to (9)) in connection with the
Triggering Transaction.
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For purposes of this Paragraph 3, (a) the term "Number of Common Shares
Deemed Outstanding" at any given time shall mean the sum of (i) the number of
shares of Common Stock outstanding at such time, (ii) the number of shares of
Common Stock issuable assuming conversion of all Aggregate Convertible
Securities then outstanding, and (iii) the number of shares of Common Stock
deemed to be outstanding under subparagraphs 3.1(1) to (9), inclusive, at such
time; and (b) the term "Aggregate Convertible Securities" shall mean all
Options, Convertible Securities and any other securities of the Company which
are convertible into or exchangeable for Common Stock.
For purposes of determining the adjusted Purchase Price under this
Paragraph 3.1, the following subsections (1) to (9), inclusive, shall be
applicable:
(1) In case the Company at any time shall in any manner grant (whether
directly or by assumption in a merger or otherwise) any rights to subscribe
for or to purchase, or any options for the purchase of, Common Stock or any
stock or other securities convertible into or exchangeable for Common Stock
(such rights or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately exercisable and
the price per share for which the Common Stock is issuable upon exercise,
conversion or exchange (determined by dividing (x) the total amount, if
any, received or receivable by the Company as consideration for the
granting of such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus, in the case of such Options which relate to Convertible Securities,
the minimum aggregate amount of additional consideration, if any, payable
upon the issue or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (y) the total maximum number of shares
of Common Stock issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Securities) shall be less than
the Market Price in effect immediately prior to the time of the granting of
such Option," then the total maximum amount of Common Stock issuable upon
the exercise of such Options, or, in the case of Options for Convertible
Securities, upon the conversion or exchange of such Convertible Securities,
shall (as of the date of granting of such Options) be deemed to be
outstanding and to have been issued and sold by the Company for such price
per share. No adjustment of the Purchase Price shall be made upon the
actual issue of such shares of Common Stock or such Convertible Securities
upon the exercise of such Options, except as otherwise provided in
subparagraph (3) below.
(2) In case the Company at any time shall in any manner issue (whether
directly or by assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert thereunder are
immediately exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange (determined by dividing (x) the
total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (y) the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Market Price in effect
immediately prior to the time of such issue or sale, then the total maximum
number of shares of
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Common Stock issuable upon conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale of such Convertible
Securities) be deemed to be outstanding and to have been issued and sold by
the Company for such price per share. No adjustment of the Purchase Price
shall be made upon the actual issue of such Common Stock upon exercise of
the rights to exchange or convert under such Convertible Securities, except
as otherwise provided in subparagraph (3) below.
(3) If the purchase price provided for in any Options referred to in
subparagraph (1), the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subparagraphs (1) or (2), or the rate at which any Convertible Securities
referred to in subparagraph (1) or (2) are convertible into or exchangeable
for Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against dilution of the type set forth in
Paragraph 3.1 or 3.3), the Purchase Price in effect at the time of such
change shall forthwith be readjusted to the Purchase Price which would have
been in effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the time initially
granted, issued or sold. If the purchase price provided for in any Option
referred to in subparagraph (1) or the rate at which any Convertible
Securities referred to in subparagraphs (1) or (2) are convertible into or
exchangeable for Common Stock, shall be reduced at any time under or by
reason of provisions with respect thereto designed to protect against
dilution, then in case of the delivery of Common Stock upon the exercise of
any such Option or upon conversion or exchange of any such Convertible
Security, the Purchase Price then in effect hereunder shall forthwith be
adjusted to such respective amount as would have been obtained had such
Option or Convertible Security never been issued as to such Common Stock
and had adjustments been made upon the issuance of the shares of Common
Stock delivered as aforesaid, but only if as a result of such adjustment
the Purchase Price then in effect hereunder is hereby reduced.
(4) On the expiration of any Option or the termination of any right to
convert or exchange any Convertible Securities, the Purchase Price then in
effect hereunder shall forthwith be increased to the Purchase Price which
would have been in effect at the time of such expiration or termination had
such Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been issued.
(5) In case any Options shall be issued in connection with the issue
or sale of other securities of the Company, together comprising one
integral transaction in which no specific consideration is allocated to
such Options by the parties thereto, such Options shall be deemed to have
been issued without consideration.
(6) In case any shares of Common Stock, Options or Convertible
Securities shall be issued or sold or deemed to have been issued or sold
for cash, the consideration received therefor shall be deemed to be the
amount received by the Company therefor; PROVIDED, HOWEVER, that in the
event of an offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended, the consideration received therefor
shall be deemed to include any monies paid to underwriters in connection
with such offering in an amount up to five percent (5%) of the per share
gross proceeds of such offering. In case any shares of Common Stock,
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Options or Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the consideration other than
cash received by the Company shall be the fair value of such consideration
as determined in good faith by the Board of Directors of the Company. In
case any shares of Common Stock, Options or Convertible Securities shall be
issued in connection with any merger in which the Company is the surviving
corporation, the amount of consideration therefor shall be deemed to be the
fair value of such portion of the net assets and business of the
non-surviving corporation as shall be attributed by the Board of Directors
of the Company in good faith to such Common Stock, Options or Convertible
Securities, as the case may be.
(7) The number of shares of Common Stock outstanding at any given time
shall not include shares owned or held by or for the account of the
Company, and the disposition of any shares so owned or held shall be
considered an issue or sale of Common Stock for the purpose of this
Paragraph 3.1.
(8) In case the Company shall declare a dividend or make any other
distribution upon the stock of the Company payable in Options or
Convertible Securities, then in such case any Options or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without
consideration.
(9) For purposes of this Paragraph 3.1, in case the Company shall take
a record of the holders of its Common Stock for the purpose of entitling
them (x) to receive a dividend or other distribution payable in Common
Stock, Options or in Convertible Securities, or (y) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such record
date shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration of
such dividend or the making of such other distribution or the date of the
granting of such right or subscription or purchase, as the case may be.
3.2. DIVIDENDS NOT PAID OUT OF EARNINGS OR EARNED SURPLUS. In the event the
Company shall declare a dividend upon the Common Stock (other than a dividend
payable in Common Stock) payable otherwise than out of earnings or earned
surplus, determined in accordance with generally accepted accounting principles,
including the making of appropriate deductions for minority interests, if any,
in subsidiaries (herein referred to as "Liquidating Dividends"), then the
Company shall pay to the person exercising such Warrant an amount equal to the
aggregate value at the time of such exercise of all Liquidating Dividends
(including but not limited to the Common Stock which would have been issued at
the time of such earlier exercise and all other securities which would have been
issued with respect to such Common Stock by reason of stock splits, stock
dividends, mergers or reorganizations, or for any other reason). For the
purposes of this Paragraph 3.2, a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that
such earnings or earned surplus are charged an amount equal to the fair value of
such dividend as determined in good faith by the Board of Directors of the
Company.
3.3. SUBDIVISIONS AND COMBINATIONS. In case the Company shall at any
time (i) subdivide the outstanding Common Stock or (ii) issue a stock
dividend on its outstanding
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Common Stock, the Purchase Price in effect immediately prior to such
subdivision or dividend shall be proportionately reduced by the same ratio as
the subdivision or dividend. In case the Company shall at any time combine
its outstanding Common Stock, the Purchase Price in effect immediately prior
to such combination shall be proportionately increased by the same ratio as
the combination.
3.4. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF
ASSETS. If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities, cash or other property with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holder of this Warrant shall have the right to acquire
and receive upon exercise of this Warrant such shares of stock, securities, cash
or other property issuable or payable (as part of the reorganization,
reclassification, consolidation, merger or sale) with respect to or in exchange
for such number of outstanding shares of Common Stock as would have been
received upon exercise of this Warrant at the Purchase Price then in effect. The
Company will not effect any such consolidation, merger or sale, unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument mailed or delivered to the holder of
this Warrant at the last address of such holder appearing on the books of the
Company, the obligation to deliver to such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase. If a purchase, tender or exchange offer is
made to and accepted by the holders of more than 50% of the outstanding shares
of Common Stock of the Company, the Company shall not effect any consolidation,
merger or sale with the person having made such offer or with any Affiliate of
such person, unless prior to the consummation of such consolidation, merger or
sale the holder of this Warrant shall have been given a reasonable opportunity
to then elect to receive upon the exercise of this Warrant either the stock,
securities or assets then issuable with respect to the Common Stock of the
Company or the stock, securities or assets, or the equivalent, issued to
previous holders of the Common Stock in accordance with such offer. For purposes
hereof the term "Affiliate" with respect to any given person shall mean a person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified.
3.5. NO ADJUSTMENT FOR EXERCISE OF CERTAIN OPTIONS, WARRANTS, ETC. The
provisions of this Section 3 shall not apply to any Common Stock issued,
issuable or deemed outstanding under subparagraphs 3.1(1) to (9) inclusive: (i)
to any person pursuant to any stock option, stock purchase, dividend
reinvestment or similar plan or arrangement for the benefit of employees,
consultants or directors of the Company or its subsidiaries in effect on the
date of issuance hereof or hereafter adopted by the Board of Directors of the
Company, (ii) pursuant to options, warrants, conversion or subsciption rights in
existence on the date of issuance hereof, (iii) pursuant to the Company's 9%
Series B Junior Convertible Redeemable Preferred Stock, par value $.0001 per
share, (iv) pursuant to this Warrant, or (v) if the Holder agrees in writing
that the provisions of this Section 3 shall not apply.
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3.6. NOTICES OF RECORD DATE, ETC. In the event that:
(1) the Company shall declare any cash dividend upon its Common Stock,
or
(2) the Company shall declare any dividend upon its Common Stock
payable in stock or make any special dividend or other distribution to the
holders of its Common Stock, or
(3) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other
rights, or
(4) there shall be any capital reorganization or reclassification of
the capital stock of the Company, including any subdivision or combination
of its outstanding shares of Common Stock, or consolidation or merger of
the Company with, or sale of all or substantially all of its assets to,
another corporation, or
(5) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in connection with such event, the Company shall give to the holder
of this Warrant:
(i) at least fifteen (15) days' prior written notice of the date
on which the books of the Company shall close or a record shall be
taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up. Such notice (i) shall also specify, in the
case of any such dividend, distribution or subscription rights, the
date on which the holders of Common Stock shall be entitled thereto
and (ii) shall be given by first class mail, postage prepaid,
addressed to the holder of this Warrant at the address of such holder
as shown on the books of the Company; and
(ii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up,
at least fifteen (15) days' prior written notice of the date when the
same shall take place. Such notice (i) shall also specify the date on
which the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be, and (ii)
shall be given by first class mail, postage prepaid, addressed to the
holder of this Warrant at the address of such holder as shown on the
books of the Company.
3.7. GRANT, ISSUE OR SALE OF OPTIONS, CONVERTIBLE SECURITIES, OR RIGHTS. If
at any time or from time to time on or after the date of issuance hereof, the
Company shall grant, issue or sell any Options, Convertible Securities or rights
to purchase property (the "Purchase Rights") pro rata to the record holders of
any class of Common Stock of the Company and such grants, issuances or sales do
not result in an adjustment of the Purchase Price under Paragraph 3.1 hereof,
then the holder of this Warrant shall be entitled to acquire (within thirty (30)
days after the later to occur of the initial exercise date of such Purchase
Rights or receipt by such
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holder of the notice concerning Purchase Rights to which such holder shall be
entitled under Paragraph 3.6) and upon the terms applicable to such Purchase
Rights either:
(i) the aggregate Purchase Rights which such holder could have
acquired if it had held the number of shares of Common Stock acquirable
upon exercise of this Warrant immediately before the grant, issuance or
sale of such Purchase Rights; provided that if any Purchase Rights were
distributed to holders of Common Stock without the payment of additional
consideration by such holders, corresponding Purchase Rights shall be
distributed to the exercising holder of this Warrant as soon as possible
after such exercise and it shall not be necessary for the exercising holder
of this Warrant specifically to request delivery of such rights; or
(ii) in the event that any such Purchase Rights shall have expired or
shall expire prior to the end of said thirty (30) day period, the number of
shares of Common Stock or the amount of property which such holder could
have acquired upon such exercise at the time or times at which the Company
granted, issued or sold such expired Purchase Rights.
3.8. ADJUSTMENT BY BOARD OF DIRECTORS. If any event occurs as to which, in
the opinion of the Board of Directors of the Company, the provisions of this
Section 3 are not strictly applicable or if strictly applicable would not fairly
protect the rights of the Holder in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such rights as aforesaid, but
in no event shall any adjustment have the effect of increasing the Purchase
Price as otherwise determined pursuant to any of the provisions of this Section
3 except in the case of a combination of shares of a type contemplated in
Paragraph 3.3 and then in no event to an amount larger than the Purchase Price
as adjusted pursuant to Paragraph 3.3.
3.9. FRACTIONAL SHARES. The Company shall not issue fractions of shares of
Common Stock upon exercise of this Warrant or scrip in lieu thereof. If any
fraction of a share of Common Stock would, except for the provisions of this
Paragraph 3.9, be issuable upon exercise of this Warrant, the Company shall in
lieu thereof pay to the person entitled thereto an amount in cash equal to the
current value of such fraction, calculated to the nearest one-hundredth (1/100)
of a share, to be computed (i) if the Common Stock is listed on any national
securities exchange on the basis of the last sales price of the Common Stock on
such exchange (or the quoted closing bid price if there shall have been no
sales) on the date of conversion or (ii) if the Common Stock shall not be
listed, on the basis of the mean between the closing bid and asked prices for
the Common Stock on the date of conversion as reported by NASDAQ, or its
successor, and if there are not such closing bid and asked prices, on the basis
of the fair market value per share as determined by the Board of Directors of
the Company.
3.10. OFFICERS' STATEMENT AS TO ADJUSTMENTS. Whenever the Purchase Price
shall be adjusted as provided in Section 3 hereof, the Company shall forthwith
file at each office designated for the exercise of this Warrant, a statement,
signed by the Chairman of the Board, the President, any Vice President or
Treasurer of the Company, showing in reasonable detail the facts requiring such
adjustment and the Purchase Price that will be effective after such
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adjustment. The Company shall also cause a notice setting forth any such
adjustments to be sent by mail, first class, postage prepaid, to the record
holder of this Warrant at his or its address appearing on the stock register. If
such notice relates to an adjustment resulting from an event referred to in
Paragraph 3.6, such notice shall be included as part of the notice required to
be mailed and published under the provisions of Paragraph 3.6 hereof.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, dissolution, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
holder hereof against dilution or other impairment. Without limiting the
generality of the foregoing, the Company will not increase the par value of any
shares of stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise, and at all times will take all such action
as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and non-assessable stock upon the exercise of this
Warrant.
5. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF WARRANTS. The
Company shall at all times reserve and keep available out of its authorized but
unissued stock, solely for the issuance and delivery upon the exercise of this
Warrant and other similar Warrants, such number of its duly authorized shares of
Common Stock as from time to time shall be issuable upon the exercise of this
Warrant and all other similar Warrants at the time outstanding.
6. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to it, or (in the case of mutilation) upon surrender and
cancellation thereof, the Company will issue, in lieu thereof, a new Warrant of
like tenor.
7. REMEDIES. The Company stipulates that the remedies at law of the holder
of this Warrant in the event of any default by the Company in the performance of
or compliance with any of the terms of this Warrant are not and will not be
adequate, and that the same may be specifically enforced.
8. NEGOTIABILITY, ETC. This Warrant is issued upon the following terms, to
all of which each taker or owner hereof consents and agrees:
8.1. Subject to the legend appearing on the first page hereof, title to
this Warrant may be transferred by endorsement (by the holder hereof executing
the form of assignment at the end hereof including guaranty of signature) and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
8.2. Any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is granted power to
transfer absolute title
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hereto by endorsement and delivery hereof to a bona fide purchaser hereof for
value; each prior taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
8.3. Until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder of this Warrant as the absolute owner
hereof for all purposes without being affected by any notice to the contrary.
8.4. Prior to the exercise of this Warrant, the holder hereof shall not be
entitled to any rights of a stockholder of the Company with respect to shares
for which this Warrant shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
8.5. The Company shall not be required to pay any Federal or state transfer
tax or charge that may be payable in respect of any transfer involved in the
transfer or delivery of this Warrant or the issuance or delivery of certificates
for Common Stock in a name other than that of the registered holder of this
Warrant or to issue or deliver any certificates for Common Stock upon the
exercise of this Warrant until any and all such taxes and charges shall have
been paid by the holder of this Warrant or until it has been established to the
Company's satisfaction that no such tax or charge is due.
9. SUBDIVISION OF RIGHTS. This Warrant (as well as any new warrants issued
pursuant to the provisions of this paragraph) is exchangeable, upon the
surrender hereof by the holder hereof, at the principal office of the Company
for any number of new warrants of like tenor and date representing in the
aggregate the right to subscribe for and purchase the number of shares of Common
Stock of the Company which may be subscribed for and purchased hereunder.
10. MAILING OF NOTICES, ETC. All notices and other communications from
the Company to the holder of this Warrant shall be mailed by first-class
certified mail, postage prepaid, to the address furnished to the Company in
writing by the last holder of this Warrant who shall have furnished an
address to the Company in writing.
11. HEADINGS, ETC. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect the meaning hereof.
12. CHANGE, WAIVER, ETC. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
13. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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14. ASSIGNABILITY. Notwithstanding anything to the contrary in this
Warrant, the assignability of this Warrant is subject to the restrictions on
Beneficial and Constructive Ownership and Transfer set forth in Article TENTH
of the Company's Amended and Restated Articles of Incorporation.
PRICE ENTERPRISES, INC.
By:
____________________________________
Name:
Title:
Dated:____________________, 2001
Attest:
___________________________
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[To be signed only upon exercise of Warrant]
To Price Enterprises, Inc.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ___________ shares of Common Stock of Price Enterprises,
Inc. and herewith makes payment of $_______________ therefor, and requests that
the certificates for such shares be issued in the name of, and be delivered to
________________________, whose address is _______________________________.
Dated:
_______________________________
__________________________
The undersigned hereby represents that it is exercising the Warrant for its own
account or the account of an Affiliate for investment purposes and not with the
view to any sale or distribution and that the undersigned will not offer, sell
or otherwise dispose of the Warrant or any shares of Common Stock issued upon
exercise of the Warrant in violation of applicable securities laws.
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
__________________________
__________________________
Address
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[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________ the right represented by the within Warrant to
purchase the ___________ shares of Common Stock of Price Enterprises, Inc. to
which the within Warrant relates, and appoints _______________ attorney to
transfer said right on the books of Price Enterprises, Inc. with full power
of substitution in the premises.
Dated:
___________________________________
__________________________
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
__________________________
Address
In the presence of:
___________________________________
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