WARRANT TO PURCHASE SERIES A PREFERRED STOCK
OF
EXCEL LEGACY CORPORATION
This is to certify that, FOR VALUE RECEIVED, BANCBOSTON CAPITAL INC., a
_______________ corporation ("BBC"), or assigns (the "Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from EXCEL LEGACY
CORPORATION, a Delaware corporation (the "Company"), __________ fully paid,
validly issued and nonassessable shares of Series A Liquidating Preference
Convertible Preferred Stock due 2005, par value $.01 per share, of the Company
(the "Series A Preferred Stock") at a price of $5.00 per share. Subject to
Section (f) below, the number of shares of Series A Preferred Stock to be
received upon the exercise of this Warrant may be adjusted upward from time to
time as hereinafter set forth, and the price to be paid for each share of Series
A Preferred Stock may be adjusted downward from time to time as hereinafter set
forth. The shares of Series A Preferred Stock deliverable upon such exercise,
and as adjusted from time to time, are hereinafter sometimes referred to as
"Warrant Shares" and the exercise price for a share of Series A Preferred Stock
in effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price." All provisions of the Registration Rights
Agreement of even date herewith between the Company and BBC shall apply to the
Warrant Shares and to any shares of common stock, par value $.01 per share, of
the Company (the "Common Stock"), into which the Warrant Shares may be
convertible, and the Warrant Shares and the shares of Common Stock into which
the Warrant Shares may be convertible shall be included in any Registration
Statement filed pursuant to such Registration Rights Agreement.
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(a) EXERCISE OF WARRANT
(1) The Holder may exercise this Warrant in whole or in part at any
time or from time to time on or after the date hereof and until 5:00 p.m. (New
York time) on the earlier of seven days following the effective date of this
Warrant or April 30, 1998; provided, however, that if either such day is a
holiday or a day on which banking institutions in the State of New York are
authorized by law to close, then 5:00 p.m. (New York time) on the next
succeeding day which shall not be such a day; provided, further, that
notwithstanding any other provisions of this Warrant to the contrary, neither
Holder nor any of its affiliates shall be entitled to exercise the rights or
obligations under this Warrant to purchase securities of the Company pursuant to
this paragraph if, as a result of such purchase, Holder and all affiliates of
Holder, taken together, would own, control or have power to vote securities of
the Company in violation or contravention of any law or regulation or any
judgment, decree or order of any governmental authority then applicable to
Holder and its affiliates. For the purposes of this paragraph, a written
statement of Holder or of any of its affiliates exercising this Warrant,
delivered to the Company upon surrender of this Warrant, to the effect that
Holder or its affiliates, as the case may be, is legally entitled to exercise
its rights under this Warrant to purchase securities of the Company and that
such purchase will not violate or contravene any law or regulation or any
judgment, decree or order of any governmental authority then applicable to
Holder and its affiliates, shall be conclusive and binding upon the Company and
shall absolutely obligate and bind the Company to deliver, in accordance with
the other terms and provisions hereof, certificates or other appropriate
instruments representing the securities so purchased.
(2) The exercise of this Warrant shall be effected through the
presentation and surrender of the Warrant to the Company at its principal
office, or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment of the Exercise
Price for the number of Warrant Shares specified in such form. As soon as
practicable after each such exercise of this Warrant, but not later than seven
days from the date of such exercise, the
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Company shall issue and deliver to the Holder a certificate or certificates for
the Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable thereunder. Upon receipt by the
Company of this Warrant at its office, or by the stock transfer agent of the
Company at its office, in proper form for exercise, the Holder shall be deemed
to be the holder of record of the shares of Series A Preferred Stock issuable
upon such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Series A
Preferred Stock shall not then be physically delivered to the Holder. The
Company shall pay all documentary, stamp or similar taxes and other governmental
charges that may be imposed with respect to the issuance of this Warrant, or the
issuance or delivery of any shares of Series A Preferred Stock upon exercise of
this Warrant; provided, however, that if shares of Series A Preferred Stock are
to be delivered in a name other than the name of the registered holder of the
Warrant being exercised, then no such delivery shall be made unless the person
requesting the same has paid to the Company the amount of transfer taxes or
charges incident thereto, if any.
(b) RESERVATION OF SHARES; FULLY PAID AND NONASSESSABLE; ETC. The Company
shall at all times reserve for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Series A Preferred Stock as shall be
required for issuance and delivery upon exercise of the Warrant. Upon such
issuance the Warrant Shares shall be fully paid and nonassessable, free and
clear of all liens, claims, taxes, encumbrances and charges whatsoever with
respect to the issue thereof and free from all preemptive or similar rights.
(c) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market price of a share, which shall be deemed to be
the closing price on the
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last business day prior to the date of exercise of this Warrant. The closing
price shall be the average of the closing bid and ask prices of the Series A
Preferred Stock as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System, National Market System, or, if the Series A
Preferred Stock is listed or admitted for trading on a securities exchange, the
average of the closing bid and ask prices of the Series A Preferred Stock on the
principal exchange on which the Series A Preferred Stock is listed or admitted
for trading (which shall be for consolidated trading if applicable to such
exchange), or if neither so reported or listed or admitted for trading, the
average of the closing bid and ask prices of the Series A Preferred Stock in the
over-the-counter market. In the event that the market price cannot be
determined as aforesaid, the Board of Directors of the Company shall determine
the market price on the basis of such quotations as it in good faith considers
appropriate.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of shares of Series
A Preferred Stock purchasable hereunder. Upon surrender of this Warrant to the
Company at its principal office or at the office of its stock transfer agent, if
any, with the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such instrument of assignment
and this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon presentation
hereof at the principal office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification,
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and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) ANTI-DILUTION PROVISIONS. As provided in the introductory paragraph
of this Warrant, the Exercise Price in effect at any time may be decreased but
may not be increased, and the number and kind of securities purchasable upon the
exercise of this Warrant may be increased but not decreased from time to time
upon the happening of any of the following events if either or both such
adjustments would be required upon application of the following provisions;
PROVIDED that the foregoing shall not prevent an increase in the Exercise Price
or a decrease in the number and kind of securities purchasable upon the exercise
of this Warrant in the event of a stock split by the Company:
(1) In case the Company shall (i) pay a dividend or make a
distribution on any shares of its capital stock in shares of its Series A
Preferred Stock, (ii) subdivide its outstanding shares of Series A Preferred
Stock into a greater number of shares, (iii) combine its outstanding shares of
Series A Preferred Stock into a smaller number of shares, or (iv) issue by
reclassification of its Series A Preferred Stock any shares of its capital
stock, the Exercise Price in effect immediately prior to such action shall be
adjusted so that the Holder may receive the number of shares of Series A
Preferred Stock of the Company which he would have owned immediately following
such action if he had exercised this Warrant immediately prior to such action.
The adjustment shall become effective immediately after the record date in the
case of a dividend or distribution and immediately after the effective date of a
subdivision,
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combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(2) In case the Company distributes any rights or warrants to all
holders of its Series A Preferred Stock entitling them for a period expiring
within 60 days after the record date mentioned below to purchase shares of
Series A Preferred Stock at a price (the "Subscription Price") less than the
current market price of such Series A Preferred Stock (as defined in Subsection
(8) below) on the record date, the Exercise Price shall be adjusted so that the
same shall equal the price determined by multiplying the Exercise Price in
effect immediately prior to the date of such issuance by a fraction, the
numerator of which shall be the sum of the number of shares of Series A
Preferred Stock outstanding on the record date mentioned below and the number of
additional shares of Series A Preferred Stock which the aggregate offering price
of the total number of shares of Series A Preferred Stock so offered would
purchase at such current market price per share of the Series A Preferred Stock,
and the denominator of which shall be the sum of the number of shares of Series
A Preferred Stock outstanding on such record date and the number of additional
shares of Series A Preferred Stock offered for subscription or purchase. Such
adjustment shall be made successively whenever such rights or warrants are
issued and shall become effective immediately. After the expiration of such
rights or warrants the Exercise Price shall be readjusted to the Exercise Price
which would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
shares of Series A Preferred Stock (or securities convertible into Series A
Preferred Stock) actually delivered.
(3) In case the Company shall hereafter distribute to all holders of
its Series A Preferred Stock (i) any shares of any class of capital stock of the
Company other than its Series A Preferred Stock, (ii) any evidence of
indebtedness of the Company or any subsidiary of the Company (excluding cash
dividends or distributions and dividends or distributions referred to in
Subsection (1) above), (iii) any other assets of the Company, or (iv) any
rights, options or warrants (excluding those referred to in Subsection (2)
above), then in each such case the Exercise Price in effect thereafter shall
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be determined by multiplying the Exercise Price in effect immediately prior
thereto by a fraction, the numerator of which shall be the current market price
per share of Series A Preferred Stock (as defined in Subsection (8) below) on
the record date mentioned below, less the fair market value on such record date
(as determined by the Company's Board of Directors) of said capital stock,
assets or evidences of indebtedness so distributed or of such rights, options or
warrants applicable to one share of Series A Preferred Stock, and the
denominator of which shall be the current market price per share of Series A
Preferred Stock on such record date. Such adjustment shall be made successively
whenever such a record date is fixed. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
distribution.
(4) In case the Company shall issue shares of its Series A Preferred
Stock excluding shares issued (i) in any of the transactions described in
Subsection (1) above, (ii) upon exercise of options granted to the Company's
employees under a plan or plans adopted by the Company's Board of Directors and
approved by its stockholders, if such shares would otherwise be included in this
Subsection (4) (but only to the extent that the exercise price per share of such
options is not less than the current market price per share of Series A
Preferred Stock (as defined in Subsection (8) below) on the date of grant),
(iii) pursuant to those certain Purchase Agreements dated as of __________,
1998, by and among the Company, the Holder and certain other parties listed on
the signature pages thereto, (iv) pursuant to that certain Warrant to Purchase
__________ Shares of Series A Preferred Stock issued concurrently herewith to
Southeastern Asset Management, Inc., (v) to stockholders of any corporation
which merges into the Company in proportion to their stock holdings of such
corporation immediately prior to such merger, upon such merger, (vi) in a bona
fide public offering pursuant to a firm commitment underwriting where the
offering price per share of Series A Preferred Stock offered is not less than
the current market price per share of Series A Preferred Stock (as defined in
Subsection (8) below) on the date of such issuance, but only if no adjustment is
required pursuant to any other specific subsection of this Section (f) (without
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regard to Subsection (9) below) with respect to the transaction giving rise to
such rights, for a consideration per share (the "Offering Price") less than the
current market price per share (as defined in Subsection (8) below) on the date
the Company fixes the offering price of such additional shares, the Exercise
Price shall be adjusted immediately thereafter so that it shall equal the price
determined by multiplying the Exercise Price in effect immediately prior thereto
by a fraction, the numerator of which shall be the sum of the number of shares
of Series A Preferred Stock outstanding immediately prior to the issuance of
such additional shares and the number of shares of Series A Preferred Stock
which the aggregate consideration received determined as provided in Subsection
(7) below for the issuance of such additional shares would purchase at such
current market price per share of Series A Preferred Stock, and the denominator
of which shall be the number of shares of Series A Preferred Stock outstanding
immediately after the issuance of such additional shares.
(5) In case the Company shall issue any securities convertible into
or exchangeable for its Series A Preferred Stock (including warrants or options
to purchase Series A Preferred Stock) excluding securities issued in
transactions described in Subsections (2) and (3) above for a consideration per
share of Series A Preferred Stock (the "Conversion Price") initially deliverable
upon conversion or exchange of such securities determined as provided in
Subsection (7) below less than the current market price per share (as defined in
Subsection (8) below) in effect immediately prior to the issuance of such
securities, the Exercise Price shall be adjusted immediately thereafter so that
it shall equal the price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the sum
of the number of shares of Series A Preferred Stock outstanding immediately
prior to the issuance of such securities and the number of shares of Series A
Preferred Stock which the aggregate consideration received determined as
provided in Subsection (7) below for such securities would purchase at such
current market price per share of Series A Preferred Stock, and the denominator
of which shall be the sum of the number of shares of Series A Preferred Stock
outstanding immediately prior to such issuance and the maximum number of shares
of Series A Preferred Stock of
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the Company deliverable upon conversion of or in exchange for such securities at
the initial conversion or exchange price or rate.
(6) Whenever the Exercise Price payable upon exercise of each Warrant
is adjusted pursuant to Subsections (1), (2), (3), (4) and (5) above, the number
of Warrant Shares purchasable upon exercise of this Warrant shall simultaneously
be adjusted by multiplying the number of Warrant Shares then issuable upon
exercise of this Warrant by the Exercise Price then in effect and dividing the
product so obtained by the Exercise Price, as adjusted.
(7) For the purpose of any computation under Subsections (4) and (5)
above, the following shall apply:
(A) in the case of the issuance of shares of Series A Preferred
Stock for cash, the consideration shall be the amount of such cash, provided
that in no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith;
(B) in the case of the issuance of shares of Series A Preferred
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors of the Company (irrespective
of the accounting treatment thereof) on the basis of a record of values of
similar property or services; and
(C) in the case of the issuance of securities convertible into
or exchangeable for shares of Series A Preferred Stock, the aggregate
consideration received therefor shall be deemed to be the consideration received
by the Company for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion or
exchange thereof, in each case to be determined in the same manner as provided
in clauses (A) and (B) of this Subsection (7).
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(8) For the purpose of any computation under Subsections (2), (3),
(4) and (5) above, the current market price per share of Series A Preferred
Stock at any date shall be deemed to be the average of the closing prices for 30
consecutive business days commencing 45 business days before such date. The
closing price for each day shall be the average of the closing bid and ask
prices of the Series A Preferred Stock as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System, National Market System,
or, if the Series A Preferred Stock is listed or admitted for trading on a
securities exchange, the average of the closing bid and ask prices of the Series
A Preferred Stock on the principal exchange on which the Series A Preferred
Stock is listed or admitted for trading (which shall be for consolidated trading
if applicable to such exchange), or if neither so reported or listed or admitted
for trading, the average of the closing bid and ask prices of the Series A
Preferred Stock in the over-the-counter market. In the event that the market
price cannot be determined as aforesaid, the Board of Directors of the Company
shall determine the market price on the basis of such quotations as it in good
faith considers appropriate.
(9) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one percent in such
price; provided, however, that any adjustments which by reason of this
Subsection (6) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment required to be made hereunder. All
calculations under this Section (f) shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be. Anything in this Section
(f) to the contrary notwithstanding, the Company shall be entitled, but shall
not be required, to make such changes in the Exercise Price, in addition to
those required by this Section (f), as it shall determine, in its sole
discretion, to be advisable in order that any dividend or distribution in shares
of Series A Preferred Stock, or any subdivision, reclassification or combination
of Series A Preferred Stock, hereafter made by the Company shall not result in
any Federal income tax liability to the holders of Series A Preferred Stock or
securities convertible into Series A Preferred Stock (including this Warrant).
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(10) Whenever the Exercise Price is adjusted, as herein provided, the
Company shall promptly but no later than 10 days after any request for such an
adjustment by the Holder, cause a notice setting forth the adjusted Exercise
Price and adjusted number of Warrant Shares issuable upon exercise of each
Warrant, and if requested, information describing the transactions giving rest
to such adjustments, to be mailed to the Holders at their last addresses
appearing in the Warrant Register, and shall cause a certified copy thereof to
be mailed to its transfer agent, if any. In the event the Company does not
provide the Holder with such notice and information within 10 days of a request
by the Holder, then notwithstanding the provisions of this Section (f), the
Exercise Price shall be immediately adjusted to equal the lowest Offering Price,
Subscription Price or Conversion Price, as applicable, since the date of this
Warrant, and the number of shares issuable upon exercise of this Warrant shall
be adjusted accordingly. The Company may retain a firm of independent certified
public accountants selected by the Board of Directors (who may be the regular
accountants employed by the Company) to make any computation required by this
Section (f), and a certificate signed by such firm shall be conclusive evidence
of the correctness of such adjustment.
(11) In the event that at any time, as a result of an adjustment made
pursuant to Subsection (1) above, the Holder of this Warrant thereafter shall
become entitled to receive any shares of the Company, other than Series A
Preferred Stock, thereafter the number of such other shares so receivable upon
exercise of this Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Series A Preferred Stock contained in Subsections (1) to (6),
inclusive above.
(12) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
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(13) Notwithstanding the foregoing, in no event shall the Exercise
Price be adjusted pursuant to this Section (f) to an amount in excess of the
Exercise Price then in effect, except in the case of a reverse-split or other
combination of the outstanding shares of Series A Preferred Stock.
(g) OFFICERS CERTIFICATE. Whenever the Exercise Price shall be adjusted
as required by the provisions of the foregoing Section, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional shares of Series A Preferred
Stock, if any, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder or
any holder of a Warrant executed and delivered pursuant to Section (a) and the
Company shall, forthwith after each such adjustment, mail a copy by certified
mail of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Series A Preferred Stock, or (ii) if the Company shall offer to the
holders of Series A Preferred Stock for subscription or purchase by them any
share of any class or any other rights, or (iii) if any capital reorganization
of the Company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another corporation, sale,
lease or transfer of all or substantially all of the property and assets of the
Company to another corporation, or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, or (iv) if action is
to be taken by holders of the Company's Series A Preferred Stock at a meeting or
by written consent, then in any such case, the Company shall cause to be mailed
by certified mail to the Holder, at least fifteen days prior the date specified
in (x), (y) or (z) below or, if earlier, the date a notice is sent to the
holders of the Company's Series A Preferred Stock with respect to such action,
as the case may be, a notice containing a brief description of the proposed
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action and stating the date on which (x) a record is to be taken for the purpose
of such dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any is to be fixed,
as of which the holders of Series A Preferred Stock or other securities shall
receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up, or (z) the stockholder action whether at a meeting or by written
consent is to take place.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Series A Preferred Stock of the Company, or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger with
a subsidiary in which merger the Company is the continuing corporation and which
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Series A Preferred Stock issuable upon exercise of this
Warrant) or in case of any sale, lease or conveyance to another entity of the
property of the Company as an entirety or substantially as an entirety, the
Company or such successor, leasing or purchasing entity, as the case may be,
shall as a condition precedent to such transaction, cause effective provisions
to be made so that the Holder shall have the right thereafter by exercising this
Warrant at any time prior to the expiration of the Warrant, to purchase the kind
and number of shares of stock and other securities and amount of property
receivable upon such reclassification, capital reorganization and other change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Series A Preferred Stock which might have been purchased upon exercise of this
Warrant immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section (i) shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Series A Preferred Stock and to
successive consolidations, mergers, sales or
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conveyances. In the event that in connection with any such capital
reorganization or reclassification, consolidation, merger, sale or conveyance,
additional shares of Series A Preferred Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Series A Preferred Stock, any such issue shall be treated as
an issue of Series A Preferred Stock covered by the provisions of Subsection (1)
of Section (f) hereof.
(j) MISCELLANEOUS. This Warrant contains the entire agreement of the
Holder and the Company with respect to the subject matter hereof, and no
provision of this Warrant may be amended, modified, supplemented, changed,
waived, discharged or terminated unless both parties consent thereto in
writing. In case any one or more of the provisions contained in this Warrant
should be held to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. This Warrant shall
be binding upon and inure to the benefit of the Holder, the Company and their
respective successors and assigns. This Warrant shall be governed by and
construed in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties have executed this Warrant as of the day
and year below written.
Dated: __________, 1998
EXCEL LEGACY CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
BANCBOSTON CAPITAL INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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PURCHASE FORM
Date ,
---------- -----
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing _____________ shares of Series A Preferred Stock and
hereby makes payment of _____________ in payment of the actual exercise price
thereof.
Signature
--------------------
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ASSIGNMENT FORM
FOR VALUE RECEIVED, hereby sells, assigns and
transfers unto
Name
-----------------------------------
(Please typewrite or print in block letters)
Address
--------------------------------
the right to purchase Series A Preferred Stock represented by this Warrant to
the extent of _______________ shares as to which such right is exercisable and
does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the same on the books of the Company with full power of substitution in
the premises.
Date ,
---------- -----
Signature
------------------------------
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