NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE LAWS AND NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY BE TRANSFERRED EXCEPT AS PROVIDED IN SECTION 4 OF THIS
WARRANT.
WARRANT
to Purchase Common Stock of
CALI REALTY CORPORATION
Expiring January 31, 2007
This Warrant certifies that Xxxx X. Xxxxxx, or registered and permitted
assigns (the "Holder"), is entitled to, subject to the terms set forth below,
subscribe for and purchase from Cali Realty Corporation, a Maryland corporation
(the "Company"), One Hundred-Seventy Thousand (170,000) duly authorized, validly
issued, fully paid and nonassessable shares of the Company's common stock, $.01
par value per share (the common stock, including any stock into which it may be
changed, reclassified, or converted, and as it may be adjusted pursuant to
Section 4(B) below, is herein referred to as the "Common Stock"). This Warrant
is one of a class of Warrants (the "RM Warrants") of the Company issued to
purchase an aggregate of 400,000 shares of Common Stock pursuant to Section
12.1(h) of the Contribution and Exchange Agreement dated January 24, 1997 by and
between the Company, Cali Realty, L.P., a Delaware limited partnership, Xxxxxx
Xxxxxx Company, LLC ("RMC LLC"), a limited liability company organized under the
laws of the State of New York, and Xxxxxx Xxxxxx-Eastview North Company, L.P., a
New York limited partnership.
This Warrant is subject to the following provisions, terms and conditions:
Section 1. Exercise of Warrant.
To exercise this Warrant in whole or in part, the Holder shall deliver to
the Company at its principal office in Cranford, New Jersey, (a) a written
notice, in substantially the form of the Exercise Notice appearing at the end of
this Warrant, of the Holder's election to exercise this Warrant, which notice
shall specify the number of shares of Common Stock to be purchased, (b) cash or
a certified check payable to the Company, or such other consideration as
determined in accordance with Section 2(D) below, in an amount equal to the
aggregate purchase price of the number of shares of Common Stock being
purchased, and (c) this Warrant. The Company shall as promptly as practicable,
and in any event within 15 days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with such notice, a stock certificate or
certificates representing the aggregate number of shares of Common Stock
specified in such notice. The stock certificate or certificates so delivered
shall be in such denominations as may be specified in such notice and shall be
issued in the name of the Holder or, subject to Sections 2(E) and (F) and
Sections 4(H) and (I) below, such other name as shall be designated in such
notice. Such stock certificate or certificates shall be deemed to have been
issued and the Holder or any other person so designated to be named therein
shall be deemed for all purposes to have become a holder of record of such
shares immediately prior to the close of business on the date such
notice is received by the Company as aforesaid. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of said stock
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the remaining shares of Common Stock called for
by this Warrant, which new Warrant shall in all other respects be identical to
this Warrant, or, at the request of the Holder, appropriate notation may be made
on this Warrant and the same returned to the Holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issue and delivery of such stock certificates and new Warrants, except that, in
case such stock certificates or new Warrants shall be registered in a name or
names other than the name of the Holder, funds sufficient to pay all stock
transfer taxes that are payable upon the issuance of such stock certificates or
new Warrants shall be paid by the Holder at the time of delivering the notice of
exercise mentioned above.
All shares of Common Stock issued upon the exercise of this Warrant shall
be validly issued, fully paid and nonassessable and, if the Common Stock is then
listed on a national securities exchange or quoted on an automated quotation
system, shall be duly listed or quoted thereon.
The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of a share of Common Stock, but,
in lieu thereof, shall pay to the Holder cash in an amount equal to a
corresponding fraction (calculated to the nearest 1/100 of a share) of the
purchase price of one share of Common Stock as of the date of receipt by the
Company of notice of exercise of this Warrant.
Section 2. Terms and Conditions of Warrants.
(A) Exercise Period. Each Warrant shall vest over a three-year period
(subject to acceleration in accordance with the terms of this Warrant), with
one-third of such Warrant vesting on the first anniversary of the date hereof,
one-third vesting on the second anniversary of the date hereof, and one-third
vesting on the third anniversary of the date hereof, and shall expire at 5:00
p.m., New York City time, on January 31, 2007, or in connection with the
Holder's earlier termination of employment with the Company as provided in
paragraph 2(E) below (the "Expiration Date").
(B) Purchase Price. The purchase price per share of Common Stock shall be
equal to the fair market value of the Common Stock on the date hereof. For
purposes of this paragraph 2(B), "fair market value" means the closing price as
quoted on the New York Stock Exchange at the end of the last business day
preceding the date hereof as reported in the New York edition of The Wall Street
Journal. It is agreed that such purchase price is $33.00 per share.
(C) Exercise of Warrant. No part of any Warrant may be exercised at the
time of vesting unless the Holder shall have remained in the employ of the
Company for such period as to which such portion of the Warrant has vested,
except as otherwise provided in paragraph 2(E) below.
(D) Payment of Purchase Price upon Exercise. Subject to the terms of
Section 2(F) hereof, the purchase price of the Common Stock as to which a
Warrant is exercised shall be paid to the Company at the time of exercise either
in cash or in such other consideration as the Executive Compensation Committee
of the Board of Directors of the Company (the "Board of
2
Directors") or such other committee that the Board of Directors may appoint to
administer the Warrants (the "Committee"), deems appropriate, including, but not
limited to, loans from the Company or a third party, Common Stock already owned
by the Holder having a total fair market value, as determined by the Committee,
equal to the purchase price, or a combination of cash and Common Stock having a
total fair market value, as so determined, equal to the purchase price. The
Committee in its sole discretion may also provide that the purchase price may be
paid by delivering a properly executed exercise notice in a form approved by the
Committee, together with irrevocable instructions to a broker to promptly
deliver to the Company the amount of applicable sale or loan proceeds to pay the
purchase price.
(E) Exercise in the Event of Death, Disability, Retirement or Other
Termination of Employment, or Change in Control.
(1) Death or Disability. If a Holder's employment by the Company
shall terminate because of his or her death or permanent disability, the
Committee may, in its sole discretion, accelerate in whole or in part, any
or all Warrants which the Holder shall not then have been entitled to
exercise. If a Holder shall die (i) while an employee of the Company, or
(ii) within twelve (12) months after termination of his or her employment
with the Company because of his or her permanent disability, such Holder's
Warrants may be exercised, to the extent that such Holder shall have been
entitled to do so on the date of his or her death or such termination of
employment (including, without limitation, by acceleration or otherwise)
by the Holder's Beneficiary (as defined below) or by the person or persons
to whom the Holder's rights under the Warrants pass by will or applicable
law, or if no such person has such right, by his or her executors or
administrators, at any time, or from time to time, but not later than the
Expiration Date or one year after the Holder's death, whichever date is
earlier. If a Holder's employment by the Company shall terminate because
of his or her permanent disability, such Holder may exercise his or her
Warrants, to the extent that such Holder shall have been entitled to do so
at the date of the termination of his or her employment (including,
without limitation, by acceleration or otherwise), at any time, or from
time to time, but not later than the Expiration Date or one year after
termination of employment because of his or her permanent disability,
whichever date is earlier.
(2) Change in Control. In the event a Holder's employment shall
terminate within six (6) months following a Change in Control (as defined
below), all Warrants which the Holder shall not then have been entitled to
exercise shall be accelerated immediately prior to or concurrently with
the occurrence of the Change in Control and the Holder shall have the
right to exercise all such Warrants at any time or from time to time
through the Expiration Date.
(3) Good Reason. If a Holder terminates his or her employment for
Good Reason (as defined below), the Committee may, in its sole discretion,
accelerate in whole or in part, any or all Warrants which the Holder shall
not then have been entitled to exercise. If a Holder's employment by the
Company shall terminate for Good Reason, such Holder may exercise his or
her Warrants, to the extent that such Holder shall have been entitled to
do so at the date of the termination of his or her employment (including,
without limitation, by acceleration or otherwise), at any time, or from
time to time, but not later
3
than the Expiration Date or ninety (90) days after termination of
employment, whichever date is earlier.
"Good Reason" shall mean (A) any assignment to the Holder of any duties
materially different from those contemplated by his or her employment agreement,
or any limitation of the powers of the Holder in any respect not contemplated by
his or her employment agreement or other material breach of his or her
employment agreement by the Company, (B) a material reduction in the Holder's
Annual Base Salary (as defined in the Holder's employment agreement) as in
effect at the time in question, or any other material failure by the Company to
comply with Paragraph 3 of the employment agreement; provided, however, that in
the event Holder is not awarded a bonus or other discretionary payment or
discretionary award described in Paragraph 3 of the employment agreement, it
shall not be deemed a failure, (C) the Company shall have given notice pursuant
to Paragraph 1 of the employment agreement that it does not wish to extend the
employment agreement, except in connection with termination of the Holder's
employment for Cause (as defined in Section 4(A) below) or by reason of death or
Disability (as defined below), or (D) failure of the Company to obtain the
assumption of the obligation to perform the employment agreement by any
successor as contemplated in Paragraph 9(a) of the employment agreement.
(4) Subject to Section 4(A) below, if a Holder's employment shall
terminate for any reason other than death, Disability, Good Reason or a
Change in Control (each as defined below) as aforesaid, all rights to
exercise his or her Warrant shall terminate at the Expiration Date or
three (3) months after termination of employment, whichever date is
earlier; provided, however, that the Committee may, in its sole
discretion, grant new Warrants or modify outstanding Warrants to permit
their exercise upon a Holder's termination of employment due to retirement
with the consent of the Company until the earlier of the Expiration Date
or twelve (12) months after termination of employment.
"Beneficiary" means the beneficiary or beneficiaries designated in
accordance with Section 4(H) to receive the amount, if any, payable under the
Warrant upon the death of a Holder.
"Change in Control" means that any of the following events has occurred:
(i) any "person" or "group" of persons, as such terms are used in
Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), other than any employee benefit plan
sponsored by the Company, becomes the "beneficial owner", as such
term is used in Section 13 of the Exchange Act, of thirty percent
(30%) or more of the Common Stock of the Company issued and
outstanding immediately prior to such acquisition;
(ii) any Common Stock of the Company is purchased pursuant to a tender or
exchange offer other than an offer by the Company; or
(iii) the dissolution or liquidation of the Company or the consummation of
any merger or consolidation of the Company or any sale or other
disposition of
4
all or substantially all of its assets, if the shareholders of the
Company immediately before such transaction own, immediately after
consummation of such transaction, equity securities (other than
options and other rights to acquire equity securities) possessing
less than thirty percent (30%) of the voting power of the surviving
or acquiring Company.
provided, however, that notwithstanding anything herein to the contrary, no
Change in Control shall be deemed to have occurred and no rights arising upon a
Change in Control described in Section 2(E) shall exist unless the Board of
Directors directs to the contrary by resolution adopted prior to the Change in
Control. Any resolution of the Board of Directors adopted in accordance with the
provisions of this Section directing that this Section 2(E) or any of such
Section become ineffective may be rescinded or countermanded at any time with or
without retroactive effect by such Board.
"Disability" means the determination by the Company, upon the advice of an
independent qualified physician, reasonably acceptable to the Holder, that the
Holder has become physically or mentally incapable of performing his duties
under any employment agreement or otherwise and such disability has disabled the
Holder for a cumulative period of one hundred eighty (180) days within a twelve
(12) month period.
(F) Repurchase Right. In the event of termination of the Holder's
employment as a result of either (i) death or Disability, (ii) termination by
the Company for any reason other than Cause or (iii) termination by the Holder
of his employment for Good Reason, the Holder shall be entitled, at the option
of the Holder, his estate or his personal representative, within ninety (90)
days (one (1) year in the case of termination as a result of the Holder's death
or Disability) of the date of such termination, to require the Company (upon
written notice delivered within one hundred eighty (180) days following the date
of termination) to repurchase all or any portion of the Holder's vested Warrants
at a price equal to the difference between the fair market value (as defined
below) of the shares of Common Stock for which the Warrants to be repurchased
are exercisable and the exercise price of such Warrant as of the date of the
Holder's termination of employment. For purposes of this paragraph 2(F), "fair
market value" means the average of the closing price on the New York Stock
Exchange of the Common Stock on each of the trading days within the thirty (30)
days immediately preceding the date of termination of the Holder's employment.
(G) Transferability and Exercise of Warrants. Subject to the provisions of
any registration rights agreement entered into in connection with the
registration of shares of Common Stock underlying the RM Warrants, no Warrant
shall be transferable other than by will or by the laws of descent and
distribution. During the lifetime of the Holder, a Warrant shall be exercisable
only by the Holder. This Warrant shall be exercisable or convertible (a) only
under circumstances such that the issue of Common Stock issuable upon such
exercise or conversion is exempt from the requirements of registration under the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities law or (b) upon registration of such Common Stock in compliance
therewith; provided, however, that the foregoing shall not apply if this Warrant
is exercised by the original Holder hereof. This Warrant shall be transferable
only under circumstances such that the transfer is exempt from the requirements
of registration under the 1933 Act and any applicable state securities law. By
acceptance hereof, the Holder agrees to
5
comply with such laws.
(H) Investment Representation. The Holder, by acceptance hereof, (i)
hereby represents that he or she is an "Accredited Investor" under Rule 501(a)
of Regulation D promulgated under Section 4(2) of the 1933 Act, and (ii)
acknowledges that this Warrant and, to the extent not registered under the 1933
Act, any Common Stock purchased or acquired pursuant hereto is being or will be
acquired solely for the Holder's own account and not as a nominee for any other
party, and with a current investment intent and not with a view to distribution
thereof. The Holder (or any person acting under Sections 2(E), (F) or (G) above)
shall deliver to the Company, at the time of any exercise of a Warrant or
portion thereof, a written representation that the shares to be acquired upon
such exercise are to be acquired for investment and not for resale or with a
view to the distribution thereof, and, if applicable, that he or she is the
original Holder of this Warrant. Delivery of such representation prior to the
delivery of any Common Stock issued upon exercise of a Warrant and prior to the
expiration of the Warrant period shall be a condition precedent to the right of
the Holder or such other person to purchase any Common Stock. In the event
certificates for Common Stock are delivered upon the exercise of a Warrant with
respect to which such an investment representation has been obtained, the
Company may cause a legend or legends to be placed on such certificates to make
appropriate reference to such representations and to restrict transfer in the
absence of compliance with applicable federal or state securities laws.
Section 3. Transfer, Division and Combination.
The Company agrees to maintain at its principal office in Cranford, New
Jersey, books for the registration and transfer of this Warrant, and, subject to
the provisions of Section 2(G) hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, on such books at such office, upon surrender
of this Warrant at such office, together with a written assignment of this
Warrant duly executed by the Holder or his agent or attorney and funds
sufficient to pay any stock transfer taxes payable upon the making of such
transfer. Upon such surrender and payment, the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees and in the
denominations specified in such instrument of assignment, and this Warrant shall
promptly be canceled. A Warrant may be exercised by a new holder for the
purchase of shares of Common Stock without having a new Warrant issued. All of
the provisions of this Section 3 are subject to the provisions of Sections 2(E),
(F) and (G) above.
Section 4. General Provisions
(A) Termination for Cause. Notwithstanding anything herein contained to
the contrary, if a Holder's employment is terminated for Cause, all Warrants, to
the extent not vested on the date of termination, shall be forfeited. "Cause"
shall mean (1) the willful and continued failure by the Holder to substantially
perform his or her duties under his or her employment agreement with the
Company, if any, or otherwise (other than any such failure resulting from the
Holder's incapacity due to physical or mental illness) for a period of thirty
(30) days after written demand for substantial performance is delivered by the
Company specifically identifying the manner in which the Company believes the
Holder has not substantially performed his or her duties, or (2) willful
misconduct by the Holder which is materially injurious to the Company,
monetarily or otherwise, or (3) the willful violation by the Holder of the
provisions of any covenant not to compete or breach of
6
confidential information with respect to the Company. For purposes of this
Paragraph 4(A), no act, or failure to act, on the Holder's part shall be
considered "willful" unless done, or omitted to be done, by him or her not in
good faith and without reasonable belief that his or her action or omission was
in furtherance of the interests of the Company.
(B) Certain Adjustments. In the event of any change in the Common Stock by
reason of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares, or any rights
offering to purchase Common Stock at a price substantially below fair market
value, or of any similar change affecting the Common Stock, the number and kind
of shares subject to Warrants in and the purchase price per share thereof shall
be appropriately adjusted consistent with such change in such manner as the
Committee may deem equitable to prevent substantial dilution or enlargement of
the rights granted to, or available for, the Holders hereunder. Any adjustment
of a Warrant pursuant to this Section 4(B) shall be made only to the extent not
constituting a "modification" within the meaning of Section 424(h)(3) of the
Internal Revenue Code of 1986, as amended from time to time, unless the holder
of such Warrant shall agree otherwise. The Committee shall give notice to each
Holder of any adjustment made pursuant to this Section 4(B) and, upon notice,
such adjustment shall be effective and binding for all purposes under this
Warrant.
(C) Successor Company. The obligations of the Company under this Warrant
shall be binding upon any successor Company or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor Company or organization succeeding to substantially all of the assets
and business of the Company. The Company agrees that it will make appropriate
provision for the preservation of Holders' rights under this Warrant in any
agreement or plan which it may enter into or adopt to effect any such merger,
consolidation, reorganization or transfer of assets.
(D) No Claim or Right. Nothing contained herein nor any action taken
hereunder shall be construed as giving any employee any right to be retained in
the employ of the Company.
(E) Awards Not Treated as Compensation Under Benefit Plans. No Warrant
shall be considered as compensation under any employee benefit plan of the
Company, except as specifically provided in any such plan or as otherwise
determined by the Board of Directors.
(F) Listing and Qualification of Common Stock. The Company, in its
discretion, may postpone the issuance or delivery of Common Stock upon any
exercise of a Warrant until completion of such stock exchange listing or other
qualification of such shares under any state or federal law, rule or regulation
as the Company may consider appropriate, and may require any Holder, Beneficiary
or legal representative to make such representations and furnish such
information as it may consider reasonably appropriate in connection with the
issuance or delivery of the shares in compliance with applicable laws, rules and
regulations. The Company covenants, however, to effect the listing of the Common
Stock underlying the Warrants on the New York Stock Exchange prior to December
1997.
(G) Taxes. The Company may make such provisions and take such steps as it
may deem necessary or appropriate for the withholding of all federal, state and
local taxes required by law to be withheld with respect to Warrants exercised
pursuant to this Agreement including, but not
7
limited to (i) deducting the amount required to be withheld from any other
amount then or thereafter payable to a Holder, Beneficiary or legal
representative, and (ii) requiring a Holder, Beneficiary or legal representative
to pay to the Company the amount required to be withheld as a condition of
releasing Common Stock. In addition, subject to such rules and regulations as
the Committee shall from time to time establish, Holders shall be permitted to
satisfy federal, state and local taxes, if any, imposed upon the issuance of
Common Stock at a rate up to such Holder's maximum marginal tax rate with
respect to each such tax by (i) irrevocably electing to have the Company deduct
from the number of shares Common Stock otherwise deliverable upon exercise of a
Warrant such number of shares of Common Stock as shall have a value equal to the
amount of tax to be withheld, (ii) delivering to the Company such portion of the
Common Stock delivered upon exercise of the Warrant as shall have a value equal
to the amount of tax to be withheld, or (iii) delivering to the Company such
Common Stock or combination of Common Stock and cash as shall have a value equal
to the amount of tax to be withheld.
(H) Designation and Change of Beneficiary. Each Holder shall file with the
Committee a written designation of one or more persons as the Beneficiary who
shall be entitled to receive the amount, if any, payable under this Warrant upon
his or her death. A Holder may, from time to time, revoke or change his or her
Beneficiary designation without the consent of any prior Beneficiary by filing a
new designation with the Committee. The last such designation received by the
Committee shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the
Committee prior to the Holder's death, and in no event shall it be effective as
of a date prior to such receipt.
(I) Payments to Persons Other Than A Holder. If the Committee shall find
that any person to whom any amount is payable under this Warrant is unable to
care for his or her affairs because of illness or accident, or is a minor, or
has died, then any payment due to such person or his or her estate (unless a
prior claim therefor has been made by a duly appointed legal representative),
may, if the Committee so directs the Company, be paid to his or her spouse, a
child, a relative, an institution maintaining or having custody of such person,
or any other person deemed by the Committee to be a proper recipient on behalf
of such person otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Committee and the Company therefor.
(J) General Creditor Status. Holders shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to aid
it in meeting its obligations hereunder. Nothing contained herein, and no action
taken pursuant hereto, shall create or be construed to create a trust of any
kind, or a fiduciary relationship between the Company and any Holder,
Beneficiary, legal representative or any other person. To the extent that any
person acquires a right to receive payments from the Company hereunder, such
right shall be no greater than the right of an unsecured general creditor of the
Company. All payments to be made hereunder shall be paid from the general funds
of the Company and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts except as
expressly set forth herein; provided, however, that in its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet the
obligations created hereunder to deliver Common Stock or pay cash; provided,
further, however, that, unless the Committee otherwise determines with the
consent of the affected Holder, the existence of such trusts or other
arrangements shall be consistent with the "unfunded" status of the 1994 Employee
Stock Option
8
Plan of Cali Realty Corporation.
(K) No Liability of Committee Members. The Holder of this Warrant agrees
that no member of the Committee shall be personally liable by reason of any
contract or other instrument executed by such member or on his or her behalf in
his or her capacity as a member of the Committee nor for any mistake of judgment
made in good faith.
Section 5. Covenant to Reserve Shares of Common Stock.
The Company covenants and agrees that it will at all times reserve and set
apart and have, free from preemptive rights, a number of shares of authorized
but unissued Common Stock, or other stock or securities deliverable pursuant to
this Warrant, sufficient to enable it at any time to fulfill all its obligations
hereunder.
Section 6. Notices.
In the event that:
(a) the Company proposes to pay any dividend payable in stock (of
any class or classes) or any obligations or stock convertible into or
exchangeable for shares of Common Stock upon its Common Stock or make any
distribution (other than ordinary cash dividends) to the holders of its
Common Stock,
(b) the Company proposes to grant to the holders of its Common Stock
generally any rights or Warrants (excluding any Warrants granted to any
employee, director, officer, contractor or consultant of the Company
pursuant to any plan approved by the Board of Directors of the Company),
(c) the Company proposes to effect any capital reorganization or
reclassification of capital stock of the Company,
(d) the Company proposes to consolidate with, or merge into, any
other Company or to transfer its property as an entirety or substantially
as an entirety, or
(e) the Company proposes to effect the liquidation, dissolution or
winding up of the Company,
then the Company shall cause notice of any such intended action to be given to
the holder of this Warrant not less than 30 days before the date on which the
transfer books of the Company shall close or a record shall be taken for such
stock dividend, distribution or granting of rights or Warrants, or the date when
such capital reorganization, reclassification, consolidation, merger, transfer,
liquidation, dissolution or winding up shall be effective, as the case may be.
Any notice or other document required or permitted to be given or
delivered to the holder of this Warrant shall be delivered by facsimile
transmission, reliable courier or first-class mail postage prepaid to the Holder
at the last address shown on the books of the Company maintained for the
registry and transfer of this Warrant. Any notice or other document required or
permitted
9
to be given or delivered to holders of record of Common Stock issued pursuant to
this Warrant shall be delivered by facsimile, reliable courier or first-class
mail postage prepaid to Holder at Holder's address as the same appears on the
stock records of the Company. Any notice or other document required or permitted
to be given or delivered to the Company shall be delivered by facsimile
transmission, reliable courier or first-class mail postage prepaid to the
principal office of the Company in Cranford, New Jersey, or delivered to the
office of one of the Company's executive officers at such address, or such other
address as shall have been furnished by the Company to the holders of record of
such Warrants and the holders of record of such Common Stock.
Section 7. Limitation of Liability; Not Shareholders.
No provision of this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive dividends or to receive
notice as a shareholder in respect of meetings of shareholders for the election
of directors of the Company or any other matter whatsoever as shareholders of
the Company. No provision hereof, in the absence of affirmative action by the
Holder to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of Holder
for the purchase price or as a shareholder of the Company, whether such
liability is asserted by the Company, creditors of the Company or others.
Section 8. Loss, Destruction, etc, of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of any Warrant, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of such Warrant, the Company
will make and deliver a new Warrant, of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Warrant. Any Warrant issued under the provisions
of this Section 8 in lieu of any Warrant alleged to be lost, destroyed or
stolen, or of any mutilated Warrant, shall constitute an original contractual
obligation on the part of the Company.
Section 9. Registration Rights.
As used in this Section 9, the term "Registrable Stock" shall mean
(i) all shares of Common Stock that may be issued upon exercise of this Warrant
(and all shares of Common Stock that may thereafter be issued in respect of such
Warrant) that is from time to time outstanding.
References in this Warrant to rules, regulations and forms
promulgated by the Securities and Exchange Commission shall include rules,
regulations and forms succeeding to the functions thereof, whether or not
bearing the same designation.
The rights and obligations of the Company and the Holder with
respect to the Registrable Stock are set forth in a Registration Rights
Agreement, dated January 31, 1997, between the Company, the Holder and the other
signatories thereto, and shall supersede any registration rights and obligations
of the Company and the Holder existing prior to the date
10
hereof with respect to the Registrable Stock.
Section 10. Amendments.
Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, provided that any term of this
Warrant may be amended or the observance of such term may be waived (either
generally or in a particular instance and either retroactively or prospectively)
with, but only with, the written consent of the Company and the holders of the
RM Warrants that are exercisable for a number of shares of Common Stock that
represent in the aggregate at least a majority of the total number of shares of
Common Stock for which all of the RM Warrants are then exercisable (whether or
not the holder of this Warrant consents).
Section 11. Governing Law and Consent to Jurisdiction.
This Warrant shall be governed by the laws of the State of New York
without regard to its conflict of laws principles or rules. This Warrant shall
be deemed to have been executed and delivered at and shall be deemed to have
been made in New York, New York.
Any legal action, suit or proceeding arising out of or relating to this
Warrant may only be instituted in any federal court of the Southern District of
New York or any state court located in New York County, State of New York, and
the Company agrees not to assert, by way of motion, as a defense or otherwise,
in any action, suit or proceeding, any claim that it is not subject personally
to the jurisdiction of such courts, that the action, suit or proceeding if
brought in such courts, would be an inconvenient forum, that the venue of the
action, suit or proceeding, if brought in any of such courts, is improper or
that this Agreement or the subject matter may not be enforced in or by such
courts on jurisdictional grounds.
11
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its duly authorized officer.
Dated: January 31, 1997
CALI REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and
General Counsel
12
EXERCISE NOTICE
The undersigned, the Holder, hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, ____________ shares
of the Common Stock covered by such Warrant and herewith makes payment in full
therefor of $_________ cash and/or by cancellation of $__________ of
indebtedness of the Company to the Holder hereof and requests that, subject to
the terms and conditions of the Warrant, certificates for such shares (and any
securities or property deliverable upon such exercise) be issued in the name of
and delivered to ______________________ whose address is
_______________________________________, and whose social security or employer
identification number is ____________.
The undersigned agrees that, in the absence of an effective registration
statement with respect to Common Stock issued upon this exercise, the
undersigned is acquiring such Common Stock for the Holder's own account and not
as a nominee for any other party, for investment and not with a view to
distribution thereof and that the certificate or certificates representing such
Common Stock may bear a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. UNLESS THEY ARE SOLD
PURSUANT TO RULE 144 PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION
UNDER SAID ACT, THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY, THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
In addition, the undersigned agrees that, in the absence of an effective
registration statement with respect to Common Stock issued upon this exercise,
stop transfer instructions will be entered on the Company's stock transfer
records with respect to Common Stock issued upon this exercise.
Dated: __________________________
Signature guaranteed:
AMENDMENT NO. 1 TO THE
WARRANT
to Purchase Common Stock of
Cali Realty Corporation
This Amendment No. 1 is made, effective as of January 31, 1997, by and
between Cali Realty Corporation, a Maryland corporation (the "Company") and Xxxx
X. Xxxxxx, or registered and permitted assigns (the "Holder").
W I T N E S S E T H
WHEREAS, the Company granted the right to purchase 170,000 shares of
Common Stock of the Company to the Holder pursuant to a warrant dated January
31, 1997 (the "Warrant"); and
WHEREAS, the Company and Holder have agreed to amend the terms of the
Warrant to provide for full vesting upon a Change in Control; and
WHEREAS, the Holder and Xxxxxxx X. Xxxxx together hold a majority of the
RM Warrants and by executing this document consent to the foregoing amendment,
as required by Section 10 of the Warrant.
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Section 2(E)(2) of the Warrant, "Change in Control", shall be deleted
in its entirety and amended to read as follows:
"Change in Control. In the event of a Change in Control (as defined
below), all Warrants which the Holder shall not then have been
entitled to exercise shall be accelerated immediately prior to or
concurrently with the occurrence of the Change in Control and the
Holder shall have the right to exercise all such Warrants at any
time or from time to time through the Expiration Date."
2. Except as specifically amended above, the Warrant and all provisions
thereof shall remain in full force and effect and are hereby ratified and
confirmed.
3. Upon the effectiveness of this Amendment, on and after the date hereof,
each reference in the Warrant to "this Warrant", "hereunder", "hereof", "herein"
or words of like import, and each reference to the Warrant in any document
relating to the Warrant shall mean and be a reference to the Warrant as amended
hereby.
4. The execution, delivery, and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Holder under the Warrant nor constitute a waiver of any provision
of the Warrant.
5. This Amendment may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
6. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
7. Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified, or ascribed thereto by reference, in the Warrant.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first written above.
CALI REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and
General Counsel
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
I hereby consent, as required by Section 10 of the RM Warrants, to the
amendment of the aforementioned Warrant to provide for full vesting upon a
Change in Control as set forth herein.
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
