THE SECURITIES EVIDENCED BY THIS WARRANT, AND THE SECURITIES ISSUABLE UPON ITS
EXERCISE, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS, AND MAY BE OFFERED, PLEDGED,
SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IF REGISTERED PURSUANT
TO THE PROVISIONS OF THE ACT AND SUCH LAWS, OR IF AN EXEMPTION FROM REGISTRATION
IS AVAILABLE.
NO. ___
WARRANT
TO PURCHASE COMMON STOCK OF
RESOURCE CAPITAL CORP.
______ Shares of Common Stock ___________, 2005
RESOURCE CAPITAL CORP., a Maryland corporation (the "COMPANY"), for
value received, hereby certifies that
or registered assigns (the "Warrantholder"), is the owner of the rights (each, a
"Warrant," and collectively the "Warrants"), subject to the terms and conditions
hereof, to purchase from the Company at any time following the first anniversary
of the date hereof to the close of business on the third anniversary of such
date (or, if such date is not a Business Day (as defined below), the first
following Business Day) (the "Exercise Period"), ________________________
(_________) shares of common stock, par value $.001 per share, of the Company
(the "Common Shares") (each Common Share issuable upon exercise of a Warrant is
referred to as a "Warrant Share"). The exercise price per Warrant Share shall be
$15.00 per share, adjusted as provided in Article II hereof (the "Exercise
Price"), payable in full as to each Warrant Share exercised at the time of
purchase. The term "Business Day" as used herein refers to any day of the week
other than a Saturday, Sunday or a day which in the City of New York, State of
New York, shall be a legal holiday. The term "Warrant Certificate" as used
herein refers to this certificate, or any Warrant Certificate issued in
substitution or replacement hereof, or in connection with any partial exercise
hereof.
The Warrants evidenced by this Warrant Certificate may be exercised in
whole or in part at any time or from time to time during the Exercise Period.
The portion of the Warrants not exercised during the Exercise Period shall
become void, and all rights hereunder and all rights in respect thereof shall
cease, at the end of the Exercise Period.
ARTICLE I
EXERCISE OF WARRANTS
Section 1.01 Exercise of Warrants.
(a) The Warrants may be exercised during the Exercise Period,
by surrendering this Warrant Certificate at the offices of the Company located
at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other office
as the Company may notify the Warrantholder) with the Election to Exercise form
attached hereto as Exhibit A duly completed and signed, and by paying in full to
the Company (i) in cash, or (ii) by certified or official bank check, or (iii)
by any combination of the foregoing, the Exercise Price for each Warrant Share
as to which the Warrants are being exercised and any applicable taxes, other
than taxes that the Company is required to pay hereunder.
(b) As soon as practicable after any exercise of any Warrants
and payment by the Warrantholder of the full Exercise Price for the Warrant
Shares as to which the Warrants are then being exercised and any applicable
taxes, the Company shall deliver to or upon the order of the Warrantholder a
certificate or certificates for the number of full Warrant Shares to which the
Warrantholder is entitled, registered on the books and records of the Company in
the name of the Warrantholder or as the Warrantholder shall direct. If all of
the Warrants evidenced by the Warrant Certificate shall not have been exercised
in full, the Company shall issue to such Warrantholder a new Warrant Certificate
exercisable for the number of Common Shares as to which the Warrants shall not
have been exercised.
(c) Each person in whose name any such certificate for Warrant
Shares is issued shall for all purposes be deemed to have become the holder of
record of such Warrant Shares on the date on which the Warrant Certificate was
surrendered to the Company and payment of the Exercise Price and any applicable
taxes was made to the Company, irrespective of the date of delivery of such
certificate for Warrant Shares.
(d) All Warrant Shares will be duly authorized, validly
issued, fully paid and nonassessable. The Company shall pay all documentary
stamp taxes attributable to the initial issuance of Warrant Shares. The Company
shall not be required, however, to pay any tax imposed in connection with any
transfer involved in the issue of the Warrant Shares in a name other than that
of the Warrantholder. In such case, the Company shall not be required to issue
any certificate for Warrant Shares until the person or persons requesting the
same shall have paid to the Company the amount of any such tax or shall have
established to the Company's satisfaction that the tax has been paid or that no
tax is due and shall have complied with Section 6.02.
Section 1.02 No Fractional Shares to be Issued. The Company shall not
be required to issue any fractional Warrant Shares in connection with the
exercise of the Warrants, and in any case where the Warrantholder would, except
for the provisions of this Section 1.02, be entitled under the terms hereof to
receive a fractional Warrant Share upon the exercise of any Warrants, the
Company shall, upon the exercise of such Warrants and receipt of the Exercise
Price, issue that number of whole shares rounded to the nearest whole share.
Neither the Company nor any Warrantholder shall be entitled to any cash or other
adjustment in respect of any such fractional Warrant Share.
Section 1.03 Cancellation of Warrants. The Company shall cancel this
Warrant Certificate when delivered to it for exercise, in whole or in part, or
delivered to it for transfer, exchange or substitution, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions hereof. If the Company shall acquire any of the Warrants
evidenced by this Warrant Certificate, such acquisition shall not operate as a
redemption or termination of the right represented by such Warrants unless and
until the Warrant Certificates evidencing such Warrants are cancelled.
Section 1.04 Restrictions on Exercise. Warrants may not be exercised to
the extent that the issuance of Warrant Shares upon such exercise would
constitute a violation of any applicable federal or state laws or regulations
pertaining to securities, real estate investment trusts or otherwise or to the
extent that the issuance of Warrant Shares upon such exercise would constitute a
breach or violation of the Company's Amended and Restated Articles of
Association.
ARTICLE II
ADJUSTMENT OF EXERCISE PRICE; MERGER, ACQUISITION, ETC.;
RESERVATION OF COMMON SHARES; PAYMENT OF TAXES
Section 2.01 Stock Splits and Reverse Stock Splits. If the Company
shall subdivide its outstanding Common Shares into a greater number of shares or
shall declare a dividend or make any other distribution upon any stock of the
Company payable in Common Shares, the Exercise Price shall be proportionately
reduced and the number of Warrant Shares issuable upon exercise of the Warrants
shall be proportionately increased. If the Company shall combine the outstanding
Common Shares into a smaller number of shares, the Exercise Price shall be
proportionately increased and the number of Warrant Shares issuable upon
exercise of the Warrants shall be proportionately decreased.
Section 2.02 Reorganizations and Asset Sales. If any capital
reorganization or reclassification of the Company, or any consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of the assets of the Company shall be effected in such a way
that the holders of the Common Shares shall be entitled to receive securities or
assets with respect to or in exchange for Common Shares, adequate provision
shall be made, prior to and as a condition of such reorganization,
reclassification, consolidation, merger or sale, whereby each Warrantholder
shall have the right to receive, upon exercise of Warrants in accordance with
the terms and conditions specified herein and in lieu of the Warrant Shares
otherwise receivable upon the exercise of such Warrants, such securities or
assets as may be issued or payable with respect to or in exchange for the number
of outstanding Common Shares equal to the number of Warrant Shares otherwise
receivable had such reorganization, reclassification, consolidation, merger or
sale not taken place. In any such case, appropriate provision shall be made with
respect to the rights and interests of such Warrantholder so that the provisions
of this Warrant shall be applicable with respect to any securities or assets
thereafter deliverable upon exercise of the Warrants. The Company shall not
effect any such consolidation, merger or sale unless prior to or simultaneously
with the consummation thereof, the survivor or successor corporation resulting
from such consolidation or merger or the purchaser of such assets shall assume
by written instrument delivered to each holder of Warrants the obligation to
deliver to such holder such securities or assets as such holder may be entitled
to receive; provided, however, that if the Company is to be liquidated or
dissolved following any reorganization, reclassification, consolidation or sale
of all or substantially all of its assets and in connection with such
liquidation or dissolution, the holders of Common Stock shall be entitled to
receive cash, the requirements of this Section 2.05 shall be satisfied if the
Company shall provide for the distribution to each Warrantholder of the amount
of cash to which such Warrantholder would have been entitled if such
Warrantholder had exercised all of such Warrantholder's outstanding Warrants
less the then-applicable aggregate Exercise Price therefor.
Section 2.03 Covenant to Reserve Shares for Issuance on Exercise. The
Company will cause an appropriate number of Common Shares to be duly and validly
authorized and reserved and will keep available out of its authorized Common
Shares, solely for the purpose of issue upon exercise of Warrants as herein
provided, the full number of Common Shares, if any, then issuable if all
outstanding Warrants then exercisable were to be exercised.
Section 2.04 Warrant Certificates. This Warrant Certificate need not be
changed because of any adjustment made pursuant to this Article II, and Warrant
Certificates issued after such adjustment may state the same Exercise Price and
the same number of Common Shares as are stated in the Warrant Certificates
initially issued. The Company, however, may at any time in its sole discretion
(which shall be conclusive) make any change in the form of Warrant Certificate
that it may deem appropriate and that does not affect the substance thereof; and
any Warrant Certificates thereafter issued or countersigned, whether in exchange
or substitution for an outstanding Warrant Certificate or otherwise, may be in
the form as so changed.
Section 2.05 Certain Notices. Upon any adjustment of the Exercise Price
and whenever the securities issuable or deliverable in exchange for Warrants are
changed pursuant to this Article II, then and in each such case the Company
shall give prompt written notice thereof, by mailing such notice by United
States Postal Service via First Class Mail, addressed to the Warrantholder at
the address of the Warrantholder as shown on the books of the Company, which
notice shall:
(a) in the case of an adjustment of the Exercise Price, state
the Exercise Price resulting from such adjustment, setting forth in reasonable
detail the method upon which such calculation is based, and
(b) in the case of a change in the securities issuable or
deliverable in exchange for Warrants, describe in reasonable detail the facts
requiring the change; specify the effective date of such change; and describe
the number or amount of, and terms of, the shares or other securities issuable
or deliverable in exchange for, each Warrant as so changed.
Failure to provide such notice, or any defect in such statement or notice, shall
not affect the legality or validity of any such adjustment or change.
Section 2.06 References to Common Shares. Unless the context otherwise
indicates, all references to Common Shares in this Warrant Certificate, in the
event of a change under this Article II, shall be deemed to refer also to any
other securities issuable or deliverable in exchange for Warrants pursuant to
such change.
ARTICLE III
REGISTRATION RIGHTS; EXPENSES OF REGISTRATION
Section 3.01 Registration Rights. The Company shall file with the
Securities and Exchange Commission (the "Commission") no later than 180 days
from the time the Warrants become exercisable, a registration statement on Form
S-11 or such other form under the Securities Act of 1933, as amended (the
"Securities Act") then available to the Company providing for the resale
pursuant to Rule 415 from time to time by the Warrantholders of any and all
Warrant Shares (such registration statement, including the prospectus,
amendments and supplements to such registration statement or prospectus,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference, if
any, in such registration statement, the "Shelf Registration Statement"). The
Company shall use its commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission as promptly as
practicable following such filing. Any Shelf Registration Statement shall
provide for the resale from time to time, and pursuant to any method or
combination of methods legally available (including, without limitation, an
underwritten offering, a sale through brokers or agents, or a sale over the
internet) by the Warrantholder of any and all Warrant Shares.
Section 3.02 Obligations of the Company. In connection with the
obligations of the Company with respect to the Shelf Registration Statement, the
Company shall:
(a) prepare the Shelf Registration Statement and file it with
the Commission, which Shelf Registration Statement shall comply in all material
respects as to form with the requirements of the applicable form and include all
financial statements required by the Commission to be filed therewith, and use
its commercially reasonable efforts to cause such Shelf Registration Statement
to become effective as promptly as practicable following such filing and to
remain effective until the earlier to occur of (i) the second anniversary of the
initial effective date of the Shelf Registration Statement; (ii) the date on
which the Warrant Shares have been sold pursuant to the Shelf Registration
Statement or distributed to the public pursuant to Rule 144 under the Securities
Act; (iii) the date on which, in the opinion of counsel to the Company, the
Warrant Shares not held by affiliates of the Company are saleable pursuant to
subparagraph (k) of Rule 144; or (iv) the date on which the Warrant Shares are
sold to the Company or any of its subsidiaries;
(b) pursuant to Section 3.02(i) hereof, (i) prepare and file
with the Commission such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement effective for the period described in Section 3.02(a) hereof, (ii)
cause each prospectus contained therein to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
promulgated under the Securities Act, and (iii) comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
the Shelf Registration Statement during the applicable period in accordance with
the method or methods of distribution set forth in the "Plan of Distribution"
section of the Prospectus;
(c) furnish to the Warrantholder, without charge, as many
copies of each Prospectus, including each preliminary prospectus, and any
amendment or supplement thereto and such other documents as such Warrantholder
may reasonably request, in order to facilitate the public sale or other
disposition of the Warrant Shares; the Company consents to the lawful use of
such Prospectus, including each preliminary prospectus, by the Warrantholder, in
connection with the offering and sale of the Warrant Shares covered by any such
prospectus;
(d) use its commercially reasonable efforts to register or
qualify, or obtain exemption from registration or qualification for, all Warrant
Shares by the time the Shelf Registration Statement is declared effective by the
Commission under all applicable state securities or "blue sky" laws of domestic
United States jurisdictions, keep each such registration, qualification or
exemption effective during the period the Shelf Registration Statement is
required to be kept effective pursuant to Section 3.02(a) and do any and all
other acts and things that may be reasonably necessary or advisable to enable
the Warrantholder to consummate the disposition in each such jurisdiction of
such Warrant Shares covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required to take any action to comply
with this Section 3.02(d) if it would require the Company or any of its
subsidiaries to (i) qualify generally to do business in any jurisdiction or to
register as a broker or dealer in such jurisdiction where it would not otherwise
be required to qualify but for this Section 3.02(d) and except as may be
required by the Securities Act, (ii) subject itself to taxation in any such
jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) use its commercially reasonable efforts to cause all
Warrant Shares to be registered and approved by such other domestic governmental
agencies or authorities, if any, as may be necessary to enable the holders
thereof to consummate the disposition of such Warrant Shares; provided, however,
that the Company shall not be required to take any action to comply with this
Section 3.02(e) if it would require the Company or any of its subsidiaries to
(i) qualify generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not otherwise be required
to qualify but for this Section 3.02(e) and except as may be required by the
Securities Act, (ii) subject itself to taxation in any such jurisdiction, or
(iii) submit to the general service of process in any such jurisdiction;
(f) notify the Warrantholder promptly (i) when the Shelf
Registration Statement has become effective and when any post-effective
amendments thereto become effective or upon the filing of a supplement to any
prospectus, (ii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation of any proceedings for that purpose,
(iii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to such Shelf Registration
Statement or related prospectus or for additional information, and (iv) of the
happening of any event during the period such Shelf Registration Statement is
effective as a result of which such Shelf Registration Statement or the related
prospectus or any document incorporated by reference therein contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or, in
the case of the prospectus, contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (which information shall be accompanied by an instruction
to suspend the use of the Shelf Registration Statement and the prospectus until
the requisite changes have been made);
(g) during the period of time referred to in Section 3.02(a)
above, use its commercially reasonable efforts to avoid the issuance of, or if
issued, to obtain the withdrawal of, any order enjoining or suspending the use
or effectiveness of the Shelf Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Warrant Shares for
sale in any jurisdiction, as promptly as practicable;
(h) upon request, furnish to the Warrantholder covered by the
Shelf Registration Statement, without charge, at least one (1) conformed copy of
such Shelf Registration Statement and any post-effective amendment or supplement
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(i) upon the occurrence of any event contemplated by Section
3.02(f)(iv) hereof, use its commercially reasonable efforts to promptly prepare
a supplement or post-effective amendment to the Shelf Registration Statement or
the related prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Warrant Shares, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and, upon request, promptly furnish
to the Warrantholder a reasonable number of copies each such supplement or
post-effective amendment;
(j) use its commercially reasonable efforts (including,
without limitation, seeking to cure in the Company's listing or inclusion
application any deficiencies cited by the exchange or market) to list or include
all Warrant Shares on the New York Stock Exchange or such other securities
exchange or inter-dealer automated quotation system on which the Company's
common stock is then listed or included for trading;
(k) use its commercially reasonable efforts to prepare and
file in a timely manner all documents and reports required by the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, to the extent the
Company's obligation to file such reports pursuant to Section 15(d) of the
Exchange Act expires prior to the expiration of the effectiveness period of the
Shelf Registration Statement as required by Section 3.02(a) hereof, to register
the Warrant Shares under the Exchange Act and to maintain such registration
through the effectiveness period required by Section 3.02(a) hereof;
(l) provide a CUSIP number for all Warrant Shares not later
than the effective date of the Shelf Registration Statement; and
(m) provide and cause to be maintained a registrar and
transfer agent for all Warrant Shares covered by the Shelf Registration
Statement from and after a date not later than the effective date of such Shelf
Registration Statement.
Section 3.03 Obligations of the Warrantholder. In connection with the
registration of the Warrant Shares, the Warrantholder shall:
(a) furnish to the Company such information regarding himself,
the Warrant Shares held by him and the intended method of disposition of the
Warrant Shares held by him as shall be reasonably required to effect the
registration of such Warrant Shares and shall execute such documents in
connection with such registration as the Company may reasonably request;
(b) cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Shelf Registration
Statement hereunder; and
(c) upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.02(f)(ii), (iii) or
(iv), immediately discontinue disposition of Warrant Shares pursuant to the
Shelf Registration Statement until the Warrantholder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 3.02(e) and, if
so directed by the Company, deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in such Warrantholder's possession, of the prospectus covering such
Warrant Shares current at the time of receipt of such notice.
Section 3.04 Expenses. The Company shall pay all Registration Expenses
in connection with the registration of the Warrant Shares pursuant to this
Agreement. "Registration Expenses," as used herein, shall mean any and all
expenses incident to the performance of or compliance with this Article III,
including, without limitation: (i) all Commission, securities exchange, National
Association of Securities Dealers ("NASD") registration, listing, inclusion and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with international, federal or state securities or blue sky laws (including,
without limitation, any registration, listing and filing fees and reasonable
fees and disbursements of counsel in connection with blue sky registration,
qualification or exemption of any of the Warrant Shares and the preparation of a
blue sky memorandum and compliance with the rules of the NASD), (iii) all
expenses incurred in preparing or assisting in preparing, word processing,
duplicating, printing, delivering and distributing the Shelf Registration
Statement, any prospectus, any amendments or supplements thereto, any
underwriting agreements or securities sales agreements insofar as the Company is
required to be a party thereto (but only with respect to the negotiation by the
Company of the terms relating to it and the performance of its obligations
thereunder), certificates and any other documents relating to the performance
under and compliance with the terms of these Warrants, (iv) all fees and
expenses incurred in connection with the listing or inclusion of any of the
Warrant Shares on the New York Stock Exchange or any other securities exchange
or inter-dealer automated quotation system as required by Section 3.02(j), (v)
the fees and disbursements of counsel for the Company and of the independent
public accountants of the Company (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance), and reasonable fees and disbursements of one counsel for the
selling Warrantholders to review the Shelf Registration Statement if so
requested by Warrantholders holding more than 25% of the outstanding Warrants,
and (vi) any fees and disbursements customarily paid by issuers in issues and
sales of securities (including the fees and expenses of any experts retained by
the Company in connection with the Shelf Registration Statement), provided,
however, that Registration Expenses shall exclude brokers' or underwriters'
discounts and commissions and transfer taxes or transfer fees, if any, relating
to the sale or disposition of Warrant Shares by the Warrantholder, the fees and
expenses (including legal fees) in preparing any underwriting or securities
sales agreements other than as provided in clause (iii), above, and the fees and
disbursements of any counsel to the Warrantholders other than as provided for in
clause (v) above.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.01 Indemnification of Warrantholder. The Company agrees to
indemnify and hold harmless (i) the Warrantholder, (ii) each person, if any, who
controls the Warrantholder within the meaning of the Securities Act or the
Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of the Warrantholder or any person who controls any
of the foregoing (each person referred to in clause (i), (ii) or (iii) are
referred to collectively as the "Indemnified Parties"), from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
judgments, expenses, liabilities or actions relating to purchases and sales of
the Warrant Shares) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, judgments, expenses, liabilities or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or the related prospectus
including any document incorporated by reference therein, or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration Statement, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse,
as incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or related prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration Statement in reliance upon and in conformity with written
information pertaining to the Warrantholder or furnished to the Company by or on
behalf of the Warrantholder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any person from whom the person asserting any such
losses, claims, damages or liabilities purchased the Warrant Shares concerned,
to the extent that a prospectus relating to such Warrant Shares was required to
be delivered by such person under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Warrant Shares to such person, a copy of the
final prospectus if the Company had previously furnished copies thereof to the
Warrantholder; provided, further, however, that this indemnity agreement will be
in addition to any liability which the Company may otherwise have to such
Indemnified Party.
Section 4.02 Indemnification of the Company. In connection with the
Shelf Registration Statement, the Warrantholder, severally and not jointly with
all other Warrantholders included as selling stockholders in the Shelf
Registration statement, will indemnify and hold harmless the Company, its
officers, directors, partners, employees, representatives, agents and investment
advisers and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act or the Exchange Act (the "Company Indemnified
Persons") from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement or a related prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration Statement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with written
information pertaining to a Warrantholder or furnished to the Company by or on
behalf of a Warrantholder specifically for inclusion therein; and, subject to
the limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company or any Company Indemnified Person for any legal or other
expenses reasonably incurred by the Company or such Company Indemnified Person
in connection with investigating or defending any loss, claim, damage, liability
or action in respect thereof. This indemnity agreement will be in addition to
any liability which the Warrantholder may otherwise have to the Company or any
Company Indemnified Person.
Section 4.03 Notice. Promptly after receipt by an indemnified party
under this Article IV of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Article IV, notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced by such failure; and provided, further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who may be counsel to the indemnifying party unless, in the reasonable
judgment of the indemnified party, a potential conflict exists), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Article 4 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
any unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
Section 4.04 Contribution. If the indemnification provided for in this
Article IV is unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above in such proportion as is appropriate
to reflect the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Warrantholder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this clause shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this clause. Notwithstanding any other provision of this clause, the
Warrantholder shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by the Warrantholder from the sale of
the Warrant Shares pursuant to the Shelf Registration Statement exceeds the
amount of damages which the Warrantholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this clause, each person, if any, who controls such indemnified party within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as such indemnified party and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
The agreements contained in this Article IV shall survive the sale of
the Warrant Shares pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF THE WARRANTHOLDER
Section 5.01 No Rights as Stockholders. Nothing contained herein shall
be construed as conferring on the Warrantholder any rights whatsoever as a
stockholder of the Company, including the right to vote at, or to receive notice
of, any meeting of stockholders of the Company; nor shall the consent of the
Warrantholder be required with respect to any action or proceeding of the
Company; nor shall the Warrantholder, by reason of the ownership or possession
of a Warrant or the Warrant Certificate, either at, before or after exercising
one or more Warrants, have any right to receive any cash dividends, stock
dividends, allotments or rights, or other distributions (except as specifically
provided herein), paid, allotted or distributed or distributable to the
stockholders of the Company prior to the date of the exercise of such Warrant,
nor shall such holder have any right not expressly provided for herein.
Section 5.02 Mutilated or Missing Warrant Certificates. If any Warrant
Certificate is lost, stolen, mutilated or destroyed, the Company in its
discretion may issue, in exchange and substitution for and upon cancellation of
the mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, upon receipt of a proper
affidavit or other evidence satisfactory to the Company (and surrender of any
mutilated Warrant Certificate) and bond of indemnity in form and amount and with
corporate surety satisfactory to the Company in each instance protecting the
Company, a new Warrant Certificate of like tenor and exercisable for an
equivalent number of Common Shares as the Warrant Certificate so lost, stolen,
mutilated or destroyed. An applicant for such a substitute Warrant Certificate
also shall comply with such other reasonable conditions and pay such other
reasonable charges as the Company may prescribe. All Warrant Certificates shall
be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement of lost stolen, mutilated or destroyed
Warrant Certificates, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement of negotiable instruments or other securities
without their surrender.
Section 5.03 Liquidation, Merger, etc.; Notice to Warrantholder.
If:
(a) the Company shall authorize the issuance to all holders of
Common Shares of rights or warrants to subscribe for or purchase capital stock
of the Company or of any other subscription rights or warrants, or
(b) the Company shall authorize the distribution to all
holders of Common Shares of evidences of its indebtedness or assets (other than
cash dividends or cash distributions payable out of current earnings, retained
earnings, earned surplus or real estate investment trust taxable income, as
determined pursuant to the Internal Revenue Code of 1986, as amended, or
dividends payable in Common Shares); or
(c) there shall be proposed any consolidation, merger,
reorganization or reclassification to which the Company is to be a party and for
which approval of the holders of Common Shares is required, or the conveyance or
transfer of the properties and assets of the Company substantially as an
entirety; or
(d) there shall be proposed the voluntary or involuntary
dissolution, liquidation or winding up of the Company; the Company shall give to
each Warrantholder prompt written notice, by mailing such notice by United
States Postal Service via First Class Mail, addressed to the Warrantholder at
the address of the Warrantholder as shown on the books of the Company, which
notice shall state: (i) the date as of which the holders of record of Common
Shares to be entitled to receive any such rights, warrants or distribution are
to be determined or (ii) the date on which any consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is
expected that holders of record of Common Shares shall be entitled to exchange
the shares for securities or other property, if any, deliverable upon the
consolidation, merger, conveyance, transfer, reorganization, reclassification,
dissolution, liquidation or winding up. Such notice shall be given at least ten
Business Days before the date as of which holders of Common Shares entitled to
receive any distribution, securities or other property in connection with such
transaction are determined.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01 Exchange of Warrant Certificate. This Warrant Certificate
may be exchanged either separately or in combination with other Warrant
Certificates at the office of the Company set forth in Section 6.06 for one or
more new Warrant Certificates representing the same aggregate number of Warrants
as were evidenced by the Warrant Certificate or Warrant Certificates exchanged,
upon surrender of this Warrant Certificate and upon compliance with and subject
to the conditions set forth herein.
Section 6.02 Transfer of Warrants. Subject to the legend appearing on
the first page hereof to compliance with all other laws, rules or regulations
pertaining to the transfer, sale or other disposition of the Warrants, and to
the provisions of this Section 6.02, title to the Warrants evidenced by this
Warrant Certificate may be transferred by endorsement (by the Warrantholder
executing the form of assignment at the end hereof including guaranty of
signature) and delivery in the same manner as in the case of a negotiable
instrument transferable by endorsement and delivery. Absent an effective
registration statement under the Securities Act covering the disposition of this
Warrant or the Common Shares issued or issuable upon exercise hereof, the
Warrantholder will not sell or transfer any or all of such Warrants or Warrant
Shares, as the case may be, without first providing the Company, at the
Warrantholder's expense, with an opinion of counsel (which may be counsel for
the Company) reasonably satisfactory to the Company to the effect that such sale
or transfer will be exempt from the registration requirements of the Securities
Act. Each certificate representing Warrant Shares, unless at the time of
exercise such Warrant Shares are registered under the Securities Act, shall bear
a legend in substantially the following form on the face thereof:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR APPLICABLE
STATE SECURITIES LAWS AND MAY BE OFFERED, PLEDGED, SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IF REGISTERED PURSUANT TO THE
PROVISIONS OF THE ACT AND SUCH LAWS, OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a certificate issued upon completion of
a distribution under a registration statement covering the securities
represented) shall also bear such legend unless, in the opinion of counsel to
the Company, the securities represented thereby may be transferred as
contemplated by such holder without violation of the registration requirements
of the Securities Act and any applicable state securities laws.
Section 6.03 No Impairment. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, dissolution, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment. Without limiting the generality of the
foregoing, the Company will not increase the par value of the Warrant Shares
above the amount payable therefor upon such exercise, and at all times will take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and non-assessable stock upon the exercise
of the Warrants.
Section 6.04 Governing Law. The Warrants evidenced by this Warrant
Certificate, and this Warrant Certificate, shall be deemed a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.
Section 6.05 Successors and Assigns. All the covenants and provisions
hereof shall bind and inure to the benefit of the Company, the Warrantholders
and their respective successors and assigns hereunder.
Section 6.06 Notices. Any notice or demand authorized hereunder to be
given or made by the Warrantholder to or on the Company shall be sufficiently
given or made if sent by United States Postal Service via First Class Mail
addressed (until the Warrantholder is notified of another address in the manner
set forth herein as follows:
Resource Capital Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
With a copy to:
X. Xxxx Xxxxxxxxxx, Esquire
Ledgewood
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Any notice or demand authorized to be given or made to the Warrantholder
hereunder shall be sufficiently given or made if sent by United States Postal
Service via First Class Mail, to the last address of such holder as shown on the
books of the Company.
Section 6.07 Headings. The Article and Section headings herein are for
convenience only and are not a part of this Warrant and shall not affect the
interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: RESOURCE CAPITAL CORP.
-----------------------
(Corporate Seal) By:
----------------------------------
Its:
----------------------------------
ELECTION TO EXERCISE
(To be executed upon exercise of Warrant)
TO RESOURCE CAPITAL CORP.:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, __________ Common Shares, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of cash or a
certified or official bank check (or combination thereof) in the amount of
$____________.
Please issue a certificate or certificates for such Common Shares in
the name of:
Please insert social security or
other identifying number of assignee Name:
Address
Signature:
Note: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
or with the name of the assignee
appearing on the assignment form
below.
Dated:
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, ___________________ hereby sells, assigns and
transfers unto _____________________, the within Warrant Certificate and the
Warrants evidenced hereby, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________ attorney,
to transfer said Warrant Certificate and the Warrants evidenced hereby, on the
books of Resource Capital Corp., with full power of substitution in the
premises.
Dated:
--------------------------------
---------------------------------------
Note: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
