Exhibit 4.9
AMENDED AND RESTATED
OWNERSHIP LIMIT WAIVER AGREEMENT
THIS AMENDED AND RESTATED OWNERSHIP LIMIT WAIVER AGREEMENT (this
"Agreement"), dated as of May 11, 2001, is between The Xxxxx Corporation, a
Delaware corporation (the "Company"), and iStar Preferred Holdings LLC, a
Delaware limited liability company ("Buyer").
R E C I T A L S
A. The Company and Buyer have entered into a Securities Purchase
Agreement dated as of April 27, 2001 (the "Securities Purchase Agreement").
B. Pursuant to the Securities Purchase Agreement, Buyer purchased
shares of the Company's Series A Cumulative Convertible Preferred Stock (the
"Preferred Shares") which are convertible into shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock", and as converted the
"Conversion Shares").
C. In connection with the purchase of the Preferred Shares, the Company
issued warrants (the "Warrants") to Buyer to purchase shares of Common Stock in
certain circumstances set forth therein (the "Warrant Shares"; together with the
Conversion Shares, the "Common Shares").
D. Article XII of the Company's Amended and Restated Certificate of
Incorporation, as amended (the "Charter"), contains a restriction prohibiting
any Person other than an Existing Holder (capitalized terms used, but not
otherwise defined, in this Agreement shall have the meanings given to them in
the Charter) from acquiring any shares of capital stock of the Company if, as a
result of such Acquisition, such Person shall Beneficially Own more than a
specified percentage (currently set at 9.225%) of the value of the outstanding
Capital Stock (the "Ownership Limit").
E. Pursuant to Section 12.11 of the Charter, the Company's Board of
Directors may exempt a Person from the Ownership Limit under certain
circumstances.
F. In connection with the execution and delivery of the Securities
Purchase Agreement, the Company and the Buyer entered into an Ownership Limit
Waiver Agreement dated as of April 27, 2001 (the "Initial Ownership Limit Waiver
Agreement").
G. The Company and the Buyer desire to amend and restate the Initial
Ownership Limit Waiver Agreement as set forth herein.
H. This Agreement shall continue to exempt Buyer from the Ownership
Limit subject to the terms and conditions thereof and shall provide an exemption
from the Ownership Limit that will apply to pledgees and/or current or
prospective holders of Preferred Shares or Common Shares, including, but not
limited to, Buyer's Affiliates (as hereinafter defined) and any
pledgee who forecloses on the Preferred Shares or Common Shares, upon execution
and delivery to the Secretary of the Company by such pledgee or holder of a
counterpart signature page to this Agreement and a completed Certificate of
Representation and Warranties (the "Certificate") in the form attached hereto
that is being delivered by Buyer as of the date hereof.
A G R E E M E N T
1. WAIVER OF THE OWNERSHIP LIMIT
1.1 The Company, effective as of the date of this Agreement, exempts
Buyer from the Ownership Limit but only (i) with respect to Buyer's ownership of
all or any portion of the Preferred Shares or Common Shares and (ii) upon and
subject to Buyer's compliance with Section 2.2 below and continued compliance
with the covenants referred to therein. In connection herewith, the Executive
Committee of the Board of Directors of the Company has adopted resolutions in
the form attached to this Agreement as EXHIBIT A which are in full force and
effect as of the date hereof and hereinafter shall not be rescinded or altered
in whole or in part without Buyer's consent. This exemption shall not apply to
any other shares of capital stock of the Company Acquired or Beneficially Owned
by the Buyer, PROVIDED, HOWEVER, that the Acquisition of the Preferred Shares
(or any Common Shares) shall not cause any other shares of capital stock owned
by the Buyer at the time the Preferred Shares are Acquired to be considered to
violate the Ownership Limit, but PROVIDED FURTHER THAT both the Preferred Shares
(and any Common Shares) and any other shares of capital stock owned by the Buyer
at the time the Preferred Shares are Acquired shall be taken into account in
determining whether any subsequent Acquisition and/or Beneficial Ownership by
Buyer of any additional shares of capital stock of the Company (other than the
Preferred Shares or any Common Shares) violates the Ownership Limit.
1.2 The Company, effective as of the date of its receipt of a
counterpart signature page to this Agreement in the form attached hereto and of
a completed and executed copy of the Certificate specified in Section 2.2 below
from such Person, exempts (i) each pledgee of all or any portion of the
Preferred Shares or the Common Shares and (ii) Buyer's Affiliates and each other
holder of all or any portion of the Preferred Shares or the Common Shares
(including any pledgee who forecloses on all or any portion of the Preferred
Shares or the Common Shares) (each such Person, a "Subsequent Holder") from the
Ownership Limit, but in each case only (A) with respect to each such Person's
ownership of all or any portion of the Preferred Shares or the Common Shares and
(B) upon and subject to such Person's compliance with Section 2.2 below and
continued compliance with the covenants referred to therein. This exemption
shall not apply to any other shares of capital stock of the Company Acquired or
Beneficially Owned by a Subsequent Holder, PROVIDED, HOWEVER, that the
Acquisition of the Preferred Shares (or any Common Shares) shall not cause any
other shares of capital stock owned by such Subsequent Holder at the time the
Preferred Shares are Acquired to be considered to violate the Ownership Limit,
but PROVIDED FURTHER THAT both the Preferred Shares (and any Common Shares) and
any other shares of capital stock owned by such Subsequent Holder at the time
the Preferred Shares are Acquired shall be taken into account in determining
whether any subsequent Acquisition
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and/or Beneficial Ownership by such Subsequent Holder of any additional shares
of capital stock of the Company (other than the Preferred Shares or any Common
Shares) violates the Ownership Limit. As used herein, an "Affiliate" of Buyer is
any Person that controls, is controlled by, or is under common control with,
Buyer and is not an individual (within the meaning of Section 542(a)(2) of the
Internal Revenue Code of 1986, as amended (the "Code"), determined taking into
account Section 856(h)(3)(A) of the Code). For avoidance of doubt, iStar
Financial Inc., a Maryland corporation, is an Affiliate of Buyer.
2. LIMITATIONS AND OTHER MATTERS
2.1 The exemption set forth in Section 1 above (the "Ownership Limit
Waiver") shall not be effective if and to the extent that, as a result of any
Person's ownership of Preferred Shares and/or Common Shares permitted by reason
of the Ownership Limit Waiver any individual (within the meaning of Section
542(a)(2) of the Code, determined taking into account Section 856(h)(3)(A) of
the Code) would be considered to have Beneficial Ownership of the Company's
stock that violates the Ownership Limit (determined without regard to any waiver
otherwise granted pursuant to Section 1 hereof), as increased by the Board
pursuant to Section 12.9 of the Charter. If the Ownership Limit Waiver is not
effective as a result of the operation of the preceding sentence, the Preferred
Shares or Common Shares that otherwise would be Excess Stock shall be
Exchangeable Excess Stock (as defined in Section 2.6 hereof) and treated in the
manner provided for in Section 2.6. Notwithstanding anything to the contrary,
the Ownership Limit Waiver shall not exempt any Person that is considered to be
an individual (within the meaning of Section 542(a)(2) of the Code, determined
taking into account Section 856(h)(3)(A) of the Code) who Beneficially Owns any
of the Preferred Shares or Common Shares by reason of attribution from the Buyer
or a Subsequent Holder under Section 544(a) of the Code and who would be
considered to have Beneficial Ownership of the Company's stock that violates the
Ownership Limit (determined without regard to the Ownership Limit Waiver), and
any such Person shall be subject to all of the remedies set forth in Article XII
of the Charter with respect to all capital stock that such Person Beneficially
Owns, provided that such remedies shall not apply with respect to the Preferred
Shares or Common Shares actually owned by the Buyer or a Subsequent Holder.
2.2 For the Ownership Limit Waiver to be effective with respect to any
Person after the Mandatory Closing, such Person must execute a counterpart
signature page to this Agreement and complete and make the representations and
covenants set forth in the Certificate, the form of which is attached hereto as
Exhibit B, and must deliver such Certificate to the Secretary of the Corporation
prior to such Person's acquisition of Preferred Shares or Common Shares, as the
case may be. Each such Person's execution of this Agreement shall evidence such
Person's agreement that any violation of the representations and covenant set
forth in Exhibit B or any attempted violation thereof will result in the
application of the remedies set forth in Section 12.3 of the Charter with
respect to capital stock of the Company, if any, held in excess of the Ownership
Limit by such Person (determined without regard to the waiver granted pursuant
to Section 1 hereof but only after taking into account any exchange of
Exchangeable Excess Stock (as defined in Section 2.6) pursuant to Section 2.6
hereof and applying the provisions of
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Section 2.6 prior to applying the remedies set forth in this sentence).
2.3 The Ownership Limit Waiver shall not be effective with respect
to (a) any Competitor (as defined in the Securities Purchase Agreement) or
(b) any of the following Persons: (i) Xxxxxxx X. Xxxxxx, an individual
("Xxxxxx"), his immediate family members, any entity controlled by Xxxxxx,
and any trust of which Xxxxxx is the trustee, grantor or beneficiary and (ii)
Xxxxxxx Xxxxxx, an individual ("Xxxxxx"), his immediate family members, any
entity controlled by Xxxxxx and any trust of which Xxxxxx is the trustee,
grantor or beneficiary. Under no circumstances shall Buyer ever be considered
a "Competitor" as defined herein.
2.4 The Ownership Limit Waiver shall not be effective with respect
to Common Shares held by any Person who acquires such Common Shares in any
manner other than upon the conversion of Preferred Shares, the exercise of
one or more Warrants, or the foreclosure on Common Shares pledged to such
Person and who, as a result of such acquisition, Beneficially Owns capital
stock of the Company in excess of the Ownership Limit.
2.5 If so requested by the Company, the Buyer and each Subsequent
Holder will cooperate with the Company in investigating any direct or indirect
relationship that the Buyer or any Subsequent Holder and Persons whose ownership
of stock would be attributed to the Buyer or any Subsequent Holder, as
applicable, under Section 318(a) of the Code (as modified by Section 856(d)(5)
of the Code) may have with the Company's tenants (but neither the Buyer nor any
Subsequent Holder makes any representation with respect to any such
relationship, other than as to the direct ownership (without regard to Section
318(a) of the Code) by the Buyer or the Subsequent Holder, as applicable, of
tenants specifically identified by the Company by name to the Buyer or such
Subsequent Holder, as applicable).
2.6 In no event and under no circumstances (other than in the event of
fraud with respect to the Certificate or the matters set forth in Section 2.5,
as determined by a final, non-appealable judgment of a court of competent
jurisdiction) shall any of the Preferred Shares or Common Shares be Excess Stock
while such Preferred Shares and Common Shares are held by the Buyer or
Subsequent Holder to which this Ownership Limit Waiver applies. If any Preferred
Shares or Common Shares held by the Buyer or any Subsequent Holder to which this
Ownership Limit Waiver applies would be Excess Stock but for the application of
the prior sentence ("Exchangeable Excess Stock"), then the capital stock of the
Company held by such holder shall be exchanged for interests in The Xxxxx
Limited Partnership, a Delaware limited partnership, as provided in Section
13(e) of the Securities Purchase Agreement.
2.7 If a proposed Subsequent Holder would be, directly or indirectly, a
Person other than a United States Person (within the meaning of Section
7701(a)(30) of the Code), the proposed transferor shall notify the Company.
Within five (5) days of the receipt of such notice, the Company may inform the
proposed transferor and proposed Subsequent Holder that the benefits of this
Agreement will not be extended to such Subsequent Holder because the Company has
reasonably determined that the Acquisition and Beneficial Ownership of the
Preferred Shares and/or Common Shares by such Subsequent Holder would or could
reasonably
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be expected to cause the Company to fail to qualify as a "domestically
controlled REIT" (as defined in Section 897(h)(2) of the Code). If the Company
does not so notify the proposed transferor and proposed Subsequent Holder within
such five (5) day period, the benefits of this Ownership Limit Waiver Agreement
shall thereafter be applicable to the Subsequent Holder upon consummation of
such transfer subject to compliance with the terms hereof.
3. MISCELLANEOUS
3.1 All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
3.2 This Agreement may be signed by the parties in separate
counterparts, each of which when so signed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
[Remainder of page intentionally left blank.
Signature page follows.]
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Each of the parties has caused this Amended and Restated Ownership
Limit Waiver Agreement to be signed by its duly authorized officers as of the
date set forth in the introductory paragraph hereof.
THE COMPANY BUYER
The Xxxxx Corporation, iStar Preferred Holdings LLC
a Delaware corporation
/s/ XXXXX X. XxXXXXXX /s/ XXX XXXXXXXX
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Name: XXXXX X. XxXXXXXX Name: XXX XXXXXXXX
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Title: PRESIDENT AND CHIEF OPERATING OFFICER Title: CHIEF EXECUTIVE OFFICER
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COUNTERPART SIGNATURE PAGE
The undersigned Subsequent Holder (as defined in the hereinafter
mentioned Ownership Limit Waiver Agreement) agrees to be bound by the terms of
this Amended and Restated Ownership Limit Waiver Agreement, dated as of May 11,
2001, between The Xxxxx Corporation, a Delaware corporation, and iStar Preferred
Holdings LLC, a Delaware limited liability company, as though the undersigned
were the Buyer and has caused this Agreement to be signed by its duly authorized
officer as of the date set forth below.
[INSERT NAME OF SUBSEQUENT HOLDER]
Name:
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Date:
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EXHIBIT A
OWNERSHIP LIMIT WAIVER RESOLUTIONS
In accordance with Section 12.11 of the Company's Amended and Restated
Certificate of Incorporation, as amended (the "Charter"), the Executive
Committee of the Board of Directors of The Xxxxx Corporation, a Delaware
corporation, hereby determines that, effective upon the execution of an Amended
and Restated Ownership Limit Waiver Agreement in substantially the form attached
hereto as EXHIBIT A (the "Ownership Limit Waiver Agreement"):
RESOLVED: That, subject to the conditions and limitations set forth in
the Ownership Limit Waiver Agreement and effective only upon the execution and
delivery by iStar Preferred Holdings LLC ("Buyer") of the Ownership Limit Waiver
Agreement and the Certificate attached thereto as Exhibit B, Buyer shall be, and
hereby will be, exempt from the Ownership Limit (capitalized terms used in these
resolutions that are not otherwise defined shall have the meanings given to
those terms in the Ownership Limit Waiver Agreement) but only with respect to
Buyer's ownership of all or a portion of the Preferred Shares or the Common
Shares.
RESOLVED FURTHER: That, subject to the conditions and limitations set
forth in the Ownership Limit Waiver Agreement and effective only upon the
execution and delivery of the Ownership Limit Waiver Agreement and the
Certificate attached thereto as Exhibit B by any pledgee or any holder of all or
any portion of the Preferred Shares or the Common Shares, including, but not
limited to, Buyer's affiliates and each pledgee who forecloses on all or any
portion of the Preferred Shares or the Common Shares (a "Subsequent Holder"),
such Subsequent Holder shall be, and hereby will be, exempt from the Ownership
Limit, but only with respect to such Subsequent Holder's ownership of all or a
portion of the Preferred Shares or the Common Shares.
RESOLVED FURTHER: That the Corporation be, and hereby is, authorized
and empowered to execute and deliver the Ownership Limit Waiver Agreement.
RESOLVED FURTHER: That the foregoing resolutions shall not be rescinded
or altered in whole or in part without the consent of Buyer.
EXHIBIT B
CERTIFICATE OF REPRESENTATIONS AND COVENANTS
FOR
OWNERSHIP LIMIT WAIVER
As [the Buyer/Subsequent Holder] of Preferred Shares issued in
connection with the Securities Purchase Agreement between The Xxxxx Corporation
and iStar Preferred Holdings LLC, dated as of April 27, 2001, and/or Common
Shares issued upon the conversion of Preferred Shares sold pursuant thereto or
issued upon the exercise of warrants issued pursuant thereto, the undersigned
desires that the Amended and Restated Ownership Limit Waiver Agreement between
The Xxxxx Corporation and iStar Preferred Holdings LLC, dated as of May 11, 2001
(the "Ownership Limit Waiver Agreement"), be applicable to the Preferred Shares
and/or the Common Shares owned or to be acquired by the undersigned to the
extent provided in the Ownership Limit Waiver Agreement. Capitalized terms used
and not defined herein shall have the meanings set forth in the Ownership Limit
Waiver Agreement.
In connection therewith, the undersigned makes the following
representations effective as of the date of execution hereof:
(a) To its knowledge, based solely upon an examination of its
ownership records, the undersigned's Acquisition and
Beneficial Ownership of Preferred Shares and/or Common Shares
permitted by reason of the Ownership Limit Waiver shall not
and will not cause any individual (within the meaning of
Section 542(a)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), determined taking into account Section
856(h)(3)(A) of the Code) to be considered to have Beneficial
Ownership of Company's stock that violates the Ownership
Limit.
(b) For U.S. federal income tax purposes, the undersigned is
(CHOOSE ONE):
_____ (i) a United States Person within the meaning of
Section 7701(a)(30) of the Code that is not acquiring
or holding the Preferred Shares and/or Common Shares
as nominee or agent for any person that is not a
United States Person (a "United States Person"),
_____ (ii) a non-United States Person,
_____ (iii) a grantor trust or a disregarded entity under
the principles of Treasury Regulation Section
301.7701-3(b) treated as owned by a United States
Person, or
_____ (iv) a grantor trust or a disregarded entity under
the principles of Treasury Regulation Section
301.7701-3(b) treated as owned by a non-United States
Person.
(c) The undersigned is acquiring the Preferred Shares and/or
Common Shares for its own account.
The undersigned covenants to notify the Company promptly after the
undersigned obtains knowledge that any of the foregoing representations
ceases to continue to be accurate.
DATED: [BUYER/SUBSEQUENT HOLDER]
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