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EXHIBIT 10.6
WARRANT AGREEMENT
BETWEEN
HEALTHCARE FINANCIAL PARTNERS REIT, INC.
AND
THE BANK OF NEW YORK
AS WARRANT AGENT
1,450,000 WARRANTS TO PURCHASE COMMON STOCK
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS ............................................................2
Section 1.0. Definitions.....................................................2
ARTICLE 2 THE WARRANT AGENT ......................................................3
Section 2.1. Appointment of Warrant Agent....................................3
Section 2.2. Duties of Warrant Agent.........................................4
Section 2.3. Compensation; Indemnification...................................5
Section 2.4. Resignation; Successor Warrant Agents...........................6
ARTICLE 3 THE WARRANTS ...........................................................7
Section 3.1. Number of Warrants..............................................7
Section 3.2. Issuance of Warrants............................................7
Section 3.3. Reserved........................................................8
Section 3.4. Registration of Transfer and Exchange...........................8
Section 3.5 Execution and Delivery.........................................13
Section 3.6. Destroyed, Lost, Mutilated or Stolen Warrant Certificates......13
Section 3.7. Persons Deemed Owners..........................................14
Section 3.8. Cancellation of Warrant Certificates...........................14
Section 3.9. No Rights as Stockholders......................................14
ARTICLE 4 EXERCISE OF WARRANTS ..................................................14
Section 4.1. Exercise Period................................................14
Section 4.2. Shares Issuable Upon Exercise; Exercise Price..................15
Section 4.3. Method of Exercise.............................................15
Section 4.4. Issuance of Common Stock.......................................16
Section 4.5. Fractions of Shares............................................16
Section 4.6. Adjustment of Exercise Price...................................16
Section 4.7. Reserved.......................................................19
Section 4.8. Notice of Certain Corporate Action.............................19
Section 4.9. Company to Reserve Common Stock................................19
Section 4.10. Taxes on Exercises.............................................20
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Section 4.11. Covenant as to Common Stock....................................20
Section 4.12. Provisions in Case of Consolidation, Merger or Sale of Assets..20
Section 4.13. No Change of Warrant Necessary.................................21
Section 4.14. Enforcement of Rights..........................................21
Section 4.15. Available Information..........................................21
ARTICLE 5 RESERVED ..............................................................21
ARTICLE 6 RESERVED ..............................................................21
ARTICLE 7 AMENDMENTS.............................................................21
Section 7.1. Amendment of Agreement.........................................21
Section 7.2. Record Date....................................................22
ARTICLE 8 MISCELLANEOUS PROVISIONS ............................................. 22
Section 8.1. Counterparts...................................................22
Section 8.2. GOVERNING LAW..................................................22
Section 8.3. Descriptive Headings...........................................22
Section 8.4. Notices........................................................22
Section 8.5. Maintenance of Office..........................................23
Section 8.6. Successors and Assigns.........................................24
Section 8.7. Separability...................................................24
Section 8.8. Persons Having Rights under Agreement..........................24
EXHIBIT A FORM OF WARRANT CERTIFICATE
EXHIBIT B TRANSFER INSTRUCTION
SCHEDULE I - ADDITIONAL PURCHASERS
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WARRANT AGREEMENT
This Agreement, dated as of the date set forth on the signature page,
by and between HealthCare Financial Partners REIT, Inc., a Maryland corporation
with an office at 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000 (the
"Company"), and The Bank of New York, with an office at 000 Xxxxxxx Xxxxxx, 00
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Stock Transfer Administration (the
"Warrant Agent").
WITNESSETH
A. The Company has authorized the issuance of up to 1,450,000
units ("Units") (1,622,500 if the Initial Purchasers' over-allotment option is
exercised in full), each Unit consisting of five shares of its Common Stock, par
value $0.0001 per share, (the "Common Stock"), and one Common Stock purchase
warrant (the "Warrants"), each Warrant initially entitling the holders thereof
to purchase one additional share of its Common Stock, which Warrants are to be
attached initially to the shares of Common Stock issued as provided in Paragraph
C below;
B. Such Units are to be purchased from the Company (i) by the
Initial Purchasers named in that certain Purchase Agreement dated April 29, 1998
and thereafter, subject to the terms thereof, offered to (A) Qualified
Institutional Buyers ("QIBs") (as defined in Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act")), and (B) (i) to a limited number of
institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act), and (ii) to individual "accredited investors" (as
defined in Rule 501(a)(4), (5) or (6) of the Securities Act) (collectively,
"Accredited Investors") pursuant to that certain Offering Memorandum, dated
April 29, 1998 (the "Offering Memorandum"), and (ii) by the additional
purchasers whose names appear on Schedule I hereto (the "Additional
Purchasers"), pursuant to those certain Purchase Agreements dated April 30,
1998, subject to the terms thereof;
C. In accordance with the provisions of Section 3 of this
Agreement, the Warrants will not be detachable from the Common Stock until six
months after issuance of the Common Stock. After six months, the Warrants may be
detached and transferred separately from the shares of Common Stock to which
they were attached upon issuance of the Units. The Warrants will expire on the
date that is three years after the date of the Offering Memorandum; and
D. The Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, replacement and exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.0. DEFINITIONS.
Capitalized terms used herein and not otherwise defined shall have the
following meanings:
Accredited Investors: Institutional "accredited investors" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and individual
"accredited investors" as defined in Rule 501(a)(4), (5) or (6) under the
Securities Act.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in the City of New York are
authorized or obligated by federal, state or local law or executive order to
close.
Commission: Securities and Exchange Commission.
Common Stock: The Company's Common Stock, par value $0.0001 per share.
Corporate Trust Office: The principal office of the Warrant Agent at
000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Stock Transfer
Administration, or such other address in New York, New York at which at any
particular time its corporate trust business shall be administered.
Corporation: A corporation, association, company, joint-stock company
or business trust.
Definitive Warrant Certificates: A Warrant Certificate that is in the
form set forth in Exhibit A to this Agreement and that does not include the
information called for by footnote 1 of Exhibit A to this Agreement.
Depositary: The Depository Trust Company as the depositary with respect
to the Warrants issuable or issued in whole or in part in global form, until a
successor shall have been appointed and become such pursuant to the applicable
provision of this Agreement, and thereafter "Depositary" shall mean or include
such successor.
Detachment Date: The date that is six months after the date of initial
issuance of the Units.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expiration Date: The date that is three years after the date of the
Offering Memorandum.
Global Warrant Certificate: A Warrant Certificate that is in the form
set forth in Exhibit A to this Agreement and that includes the information
called for by footnote 1 of Exhibit A to this Agreement.
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Holder: A Person in whose name a Warrant Certificate is registered in
the Warrant Register.
Person: An individual, limited or general partnership, Corporation,
joint venture, trust or unincorporated organization, or any other entity,
including a government or agency or political subdivision thereof.
QIB: A "qualified institutional buyer" as defined in Rule 144A.
Registration Rights Agreement: The Registration Rights Agreement, dated
as of the date hereof, among the Company, the Initial Purchasers of the Units
and the Additional Purchasers other than HealthCare Financial Partners, Inc.
Rule 144: Rule 144 promulgated under the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act.
Securities Act: The Securities Act of 1933, as amended.
Trading Day: Any day other than a Saturday or Sunday or a day on which
securities are not traded on any national securities exchange.
Transfer Restricted Warrants: Each Warrant until the date on which such
Warrant (i) has been disposed of pursuant to an effective registration statement
under the Securities Act, (ii) is distributed to the public pursuant to Rule 144
or is freely salable pursuant to Rule 144(k) (or any similar provisions then in
force), (iii) is otherwise freely tradable without registration under the
Securities Act or (iv) has been acquired by the Company.
Warrant Agent: The Bank of New York until a successor Warrant Agent
shall have become such pursuant to the applicable provisions of this Agreement,
and thereafter "Warrant Agent" shall mean such successor Warrant Agent.
Warrant Certificate: A certificate representing Warrants issued under
this Agreement.
Warrant Custodian: The Warrant Agent or such other entity that is a
"fast agent" meeting the requirements of the Depositary as the Warrant Agent
shall designate from time to time, to act as custodian with respect to the
Warrants in global form, or any successor entity thereto.
ARTICLE 2
THE WARRANT AGENT
SECTION 2.1. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent as its agent in respect
of the Warrants and the Warrant Certificates, upon the terms and subject to the
conditions set forth herein, and subject to resignation or removal of the
Warrant Agent as provided herein. The Warrant Agent agrees to accept such
appointment, upon the terms and subject to the conditions set forth herein.
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The Warrant Agent shall have the powers and authority granted to it by this
Agreement and such further powers and authority to act on behalf of the Company
as the Company may hereafter grant to or confer upon it.
SECTION 2.2. DUTIES OF WARRANT AGENT.
The Warrant Agent accepts its obligations set forth herein upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders from time
to time of the Warrant Certificates shall be subject:
(a) The Warrant Agent shall act hereunder as agent and in a
ministerial capacity for the Company, and its duties shall be determined solely
by the provisions hereof. In acting under this Agreement and with respect to the
Warrant Certificates, the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any Holder.
(b) The Warrant Agent shall be obligated to perform such duties as
are specifically set forth herein and in the Warrant Certificates and no implied
duties or obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of its
covenants or agreements contained in this Agreement or the Warrant Certificates
or in the case of the receipt of any written demand from any Holder with respect
to such default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any proceeding at
law or otherwise, or to make any demand upon the Company.
(c) The Warrant Agent is hereby authorized and directed to accept
written instructions with respect to the performance of its duties hereunder
from any one of the Chief Executive Officer, the President or the Chief
Financial Officer of the Company (each a "Responsible Officer") or from any
other officer of the Company authorized by resolutions duly adopted by the Board
of Directors of the Company to give such instructions, and to apply to such
Responsible Officers for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions from any Responsible Officer with
respect to any matter arising in connection with the Warrant Agent's duties and
obligations arising under this Agreement.
(d) The Warrant Agent shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith in accordance with any
notice, statement, instruction, request, direction, order or demand of a
Responsible Officer of the Company believed by it to be genuine. Any such
notice, statement, instruction, request, direction, order or demand of the
Company shall be sufficiently evidenced by an instrument signed by a Responsible
Officer.
(e) Whenever in the performance of its duties under this
Agreement, the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a Responsible Officer, and
such certificate shall
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be full authorization to the Warrant Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon such
certificate.
(f) The Warrant Agent, to the extent permitted by applicable law,
may engage or be interested in any financial or other transaction with the
Company and may act on, or as depository, trustee or agent for, any committee or
body of holders of shares or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed
to prevent the Warrant Agent from acting in any other capacity for the Company.
(g) The Warrant Agent shall not, by countersigning or delivering
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any securities or other
property issued or issuable upon exercise of any Warrant or whether any stock
issued upon exercise of any Warrant is fully paid and nonassessable.
(h) The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder to determine whether any fact exists that may
require any adjustment to the Exercise Price, or with respect to the nature or
extent of any adjustment, when made, or with respect to the method employed in
making any adjustment to the Exercise Price.
(i) The Warrant Agent shall not be liable for any act or omission
in connection with this Agreement except for its own negligence or willful
misconduct.
(j) The Warrant Agent may at any time consult with counsel
satisfactory to it and shall incur no liability or responsibility in respect of
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the opinion or advice of such counsel.
(k) The Company agrees that it will perform, execute, acknowledge
and deliver, or cause to be performed, executed, acknowledged and delivered, all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing by the Warrant
Agent of the provisions of this Agreement.
(l) The Warrant Agent shall not be required to risk or expend its
own funds in the performance of its obligations and duties hereunder unless it
has obtained an indemnity reasonably satisfactory to it to reimburse it for such
expenditure.
(m) The Warrant Agent shall not be under any liability for
interest on, and shall not be required to invest, any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates. The Warrant Agent shall not be accountable for the use or
application by the Company of the proceeds of the exercise of any Warrant.
SECTION 2.3. COMPENSATION; INDEMNIFICATION.
The Company agrees to pay the Warrant Agent from time to time such
compensation as shall be agreed upon by the Company and the Warrant Agent, and
the Company agrees to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses and disbursements
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incurred without negligence or willful misconduct on its part in connection with
the services rendered by it hereunder.
The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense, including judgments, costs
and reasonable counsel fees, incurred without negligence or willful misconduct
on the part of the Warrant Agent, arising out of or in connection with its
acting as Warrant Agent hereunder. The obligations of the Company under this
Section 2.3 shall survive the exercise and the expiration of the Warrants and
the resignation and removal of the Warrant Agent.
SECTION 2.4. RESIGNATION; SUCCESSOR WARRANT AGENTS.
The Warrant Agent may at any time resign as Warrant Agent and be
discharged from all further duties and liabilities hereunder (except liabilities
arising as a result of the Warrant Agent's own negligence or willful
misconduct), by giving written notice to the Company and each holder of Warrants
of such resignation, specifying the date on which such resignation shall be
effective; provided, that such notice shall be given no less than 90 days prior
to such effective date. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor Warrant Agent by written instrument in
duplicate signed on behalf of the Company by a Responsible Officer, one copy of
which shall be delivered to the resigning Warrant Agent and one copy to the
successor Warrant Agent. Such resignation shall become effective upon the
acceptance of the appointment by the successor Warrant Agent.
The Company may, at any time and for any reason, remove the Warrant
Agent and appoint a successor Warrant Agent by written instrument in duplicate,
specifying such removal and the date on which it is to become effective, signed
by a Responsible Officer of the Company, one copy of which shall be delivered to
the Warrant Agent being removed and one copy to the successor Warrant Agent.
Upon resignation or removal of the Warrant Agent, if the Company shall
fail to appoint a successor Warrant Agent within a period of 90 days after
receipt of such notice of resignation or removal, then any Holder may apply to a
court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to the Warrant Agent, either
by the Company or by such a court, the duties of the Warrant Agent shall be
carried out by the Company.
Any appointment of a successor Warrant Agent shall become effective
upon acceptance of appointment by the successor Warrant Agent as provided in
this Section 2.4. As soon as practicable after the appointment of the successor
Warrant Agent, the Company shall cause written notice of the change in the
Warrant Agent to be given to each of Holder.
Each successor Warrant Agent shall execute and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder and all the provisions of this Agreement, and thereupon such successor
Warrant Agent shall, without any further act, deed or conveyance, become vested
with the same powers, rights, duties and responsibilities of its predecessor
hereunder, with like effect as if it had been originally named herein, and the
Warrant
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Agent shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all moneys,
securities, records or other property on deposit with or held by the Warrant
Agent under this Agreement.
Any Person into which the Warrant Agent may be converted or merged, or
any corporation resulting from any consolidation to which the Warrant Agent
shall be a party, or any corporation succeeding to the trust business of the
Warrant Agent, shall be a successor Warrant Agent under this Agreement without
any further act on the part of any party. Any such successor Warrant Agent shall
promptly cause notice of its succession as Warrant Agent to be mailed to the
Company and to each Holder.
ARTICLE 3
THE WARRANTS
SECTION 3.1. NUMBER OF WARRANTS.
The number of Warrants that may be issued and delivered under this
Agreement is limited to 1,450,000 Warrants (or 1,622,500 if the Initial
Purchasers' over-allotment option is exercised in full pursuant to Section 2(e)
of the Purchase Agreement), except for Warrants issued and delivered in
connection with any transfer of, in exchange for, or in lieu of, other Warrants
(which other Warrants shall be canceled) in accordance with the terms of this
Agreement.
SECTION 3.2. ISSUANCE OF WARRANTS.
Prior to the Detachment Date, beneficial ownership of each Warrant
shall be evidenced by the Common Stock certificate to which such Warrant
relates, bearing the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE INCLUDE THE BENEFICIAL
OWNERSHIP IN A STOCK PURCHASE WARRANT FOR A NUMBER OF WARRANT SHARES EQUAL TO
ONE-FIFTH OF THE NUMBER OF SHARES OF COMMON STOCK SET FORTH ON THE FACE HEREOF,
SUBJECT TO ADJUSTMENTS AS SET FORTH IN THE WARRANT AGREEMENT GOVERNING THE
WARRANTS, WHICH STOCK PURCHASE WARRANT IS HELD BY THE WARRANT AGENT AND IS
DEEMED TO BE ATTACHED HERETO AND IS NOT DETACHABLE HEREFROM NOR EXERCISABLE
EXCEPT AS SET FORTH IN THE WARRANT AGREEMENT. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE PROVISIONS AND ENTITLED TO THE BENEFITS OF SUCH
WARRANT AGREEMENT, A COPY OF WHICH IS ON FILE AT THE OFFICES OF THE COMPANY AND
WILL BE MADE AVAILABLE TO ANY SHAREHOLDER UPON REQUEST WITHOUT CHARGE. UPON
DETACHMENT OF THE WARRANT FOLLOWING THE DETACHMENT DATE, A SEPARATE COMMON STOCK
CERTIFICATE AND A WARRANT CERTIFICATE REPRESENTING OWNERSHIP OF THE COMMON STOCK
AND THE WARRANTS, RESPECTIVELY, WILL BE ISSUED TO THE REGISTERED HOLDER OF THIS
COMMON STOCK CERTIFICATE.
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After the Detachment Date, Warrants offered and sold to QIBs will be,
except as provided in the last paragraph of this Section 3.2, issued in the form
of a single, permanent Global Warrant Certificate in definitive, fully
registered form, in substantially the form set forth in Exhibit A to this
Agreement (including the information called for by footnotes 1, 2, 3 and 4
thereof) (the "Restricted Global Warrant Certificate"), which will be deposited
with the Warrant Custodian and registered in the name of the Depositary or a
nominee of the Depositary.
Warrants transferred pursuant to an effective registration statement
under the Securities Act or in reliance on Rule 144 (and, in each such case, in
accordance with Section 3.4 of this Agreement) will be, upon request of the
transferor, represented by a single, permanent Global Warrant Certificate in
definitive, fully registered form, in substantially the form set forth in
Exhibit A to this Agreement (including the information called for by footnotes
1, 3 and 4 thereof) (the "Unrestricted Global Warrant Certificate"), which will
be held by the Warrant Custodian and registered in the name of the Depositary or
a nominee of the Depositary.
Each Global Warrant Certificate shall represent such of the outstanding
Warrants as shall be specified therein and each shall provide that it shall
represent the aggregate number of outstanding Warrants from time to time
endorsed thereon and that the aggregate amount of outstanding Warrants
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, transfers and exercises. Any endorsement of a
Global Warrant Certificate to reflect the amount of any increase or decrease in
the amount of outstanding Warrants represented thereby shall be made by the
Warrant Agent or the Warrant Custodian, at the direction of the Warrant Agent,
in accordance with instructions given by the Holder of the Global Warrant
Certificate and in accordance with Section 3.4 of this Agreement.
After the Detachment Date, Warrants offered and sold (i) to Accredited
Investors who are not QIBs or (ii) to QIBs who elect by written notice to the
Company to take physical delivery of Definitive Warrant Certificates rather than
a beneficial interest in a Global Warrant Certificate, will be issued in the
form of Definitive Warrant Certificates. Definitive Warrant Certificates may
also be issued in accordance with Section 3.4 of this Agreement.
SECTION 3.3. RESERVED.
SECTION 3.4. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) General. The Company shall cause to be kept at the Corporate
Trust Office of the Warrant Agent a register (the register maintained in such
office and in any other office or agency designated pursuant to Section 8.5 of
this Agreement being herein collectively referred to as the "Warrant Register")
in which the Warrant Agent shall provide for the registration of Warrant
Certificates and of transfers and exchanges of Warrants.
(b) Transfer of a Beneficial Interest in a Global Warrant
Certificate. The transfer and exchange of a beneficial interest in a Global
Warrant Certificate shall be effected through the Depositary in accordance with
this Agreement (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
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(c) Transfer and Exchange of Definitive Warrant Certificates. A
Holder of a Definitive Warrant Certificate may at any time transfer such
Definitive Warrant Certificate or exchange such Definitive Warrant Certificate
for Definitive Warrant Certificates representing an equal number of Warrants in
accordance with this subsection (c). Upon receipt by the Warrant Agent of:
(i) a Definitive Warrant Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, in form reasonably
satisfactory to the Warrant Agent, and
(ii) if such Definitive Warrant Certificate represents
Transfer Restricted Warrants, a certificate in substantially the form
set forth in Exhibit B to this Agreement from the Holder thereof
requesting Definitive Warrant Certificates and stating that such
Warrants are being:
(A) delivered to the Warrant Agent for registration
in the name of such Holder, without transfer; or
(B) transferred pursuant to an effective registration
statement under the Securities Act; or
(C) transferred to a QIB in accordance with Rule
144A; or
(D) transferred in reliance on an exemption from the
registration requirements of the Securities Act other than
that provided by Rule 144A (in which case the Definitive
Warrant Certificate surrendered shall also be accompanied by
an opinion of counsel reasonably acceptable to the Company and
the Warrant Agent to the effect that such transfer is in
compliance with the Securities Act),
then the Warrant Agent will cancel the surrendered Definitive Warrant
Certificate, the Company will execute one or more Definitive Warrant
Certificates representing the amount of Warrants to be transferred or exchanged
and the Warrant Agent will countersign and deliver to the transferee or Holder
such Definitive Warrant Certificates and the Warrant Agent will register such
Definitive Warrant Certificates in the name of the transferee or Holder.
(d) Transfer of a Definitive Warrant Certificate for a Beneficial
Interest in a Global Warrant Certificate. A Holder of a Definitive Warrant
Certificate may at any time, subject to the rules and procedures of the
Depositary, transfer such Definitive Warrant Certificate for an equivalent
beneficial interest in the appropriate Global Warrant Certificate in
accordance with this subsection (d). Upon receipt by the Warrant Agent of:
(i) a Definitive Warrant Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, in form reasonably
satisfactory to the Warrant Agent, together with an instruction of the
transferor thereof requesting an equivalent beneficial interest in the
appropriate Global Warrant Certificate; and
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(ii) if such Definitive Warrant Certificate represents Transfer
Restricted Warrants, a certificate in substantially the form set forth in
Exhibit B to this Agreement from the transferor thereof stating that such
Warrants are being transferred:
(A) to a QIB in accordance with Rule 144A (in which
case the appropriate Global Warrant Certificate shall be the
Restricted Global Warrant Certificate); or
(B) pursuant to an effective registration statement
under the Securities Act or in reliance on Rule 144 (in each of
which cases the appropriate Global Warrant Certificate shall be the
Unrestricted Global Warrant Certificate and, in the case of a
transfer in reliance on Rule 144, the Warrant Agent shall also
receive an opinion of counsel reasonably acceptable to the Company
and to the Warrant Agent to the effect that such transfer is in
compliance with the Securities Act),
then the Warrant Agent will cancel the surrendered Definitive Warrant
Certificate, the Warrant Custodian, in accordance with the standing instructions
and procedures existing among the Depositary and the Warrant Custodian, will
increase the aggregate number of Warrants covered by the appropriate Global
Warrant Certificate in the amount to be transferred and the Depositary will
effect the transfer in accordance with its procedures therefor.
(e) Transfer or Exchange of a Beneficial Interest in a Global Warrant
Certificate for a Definitive Warrant Certificate. A Holder of a beneficial
interest in a Global Warrant Certificate may at any time, subject to the rules
and procedures of the Depositary, transfer or exchange such beneficial
interest for one or more Definitive Warrant Certificates in accordance with this
subsection (e). Upon receipt by the Warrant Custodian of:
(i) an instruction given in accordance with the
procedures of the Depositary on behalf of a Holder of a beneficial
interest in a Global Warrant Certificate to reduce the Global Warrant
Certificate by the number of Warrants to be transferred or exchanged; and
(ii) if such Global Warrant Certificate is the
Restricted Global Warrant Certificate, a certificate (which may be
submitted by facsimile promptly followed by an original) in substantially
the form set forth in Exhibit B to this Agreement from the Holder of such
beneficial interest stating that such Warrants are being:
(A) delivered to the Warrant Agent for registration
in the name of such Holder, without change of beneficial
ownership; or
(B) transferred pursuant to an effective
registration statement under the Securities Act; or
(C) transferred to a QIB in accordance with Rule
144A; or
(D) transferred in reliance on an exemption from the
registration requirements of the Securities Act other than that
provided by Rule 144A (in
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which case the Warrant Custodian shall also receive an opinion
of counsel reasonably acceptable to the Company and to the
Warrant Custodian to the effect that such transfer is in
compliance with the Securities Act),
then the Warrant Custodian, in accordance with the standing instructions and
procedures existing among the Depositary the Warrant Custodian, will reduce the
amount of Warrants covered by the appropriate Global Warrant Certificate, the
Company will execute one or more Definitive Warrant Certificates in the
aggregate amount of Warrants to be transferred or exchanged and the Warrant
Agent will countersign and deliver to the transferee or Holder such Definitive
Warrant Certificates and the Warrant Agent shall register the Definitive Warrant
Certificates in the name of such transferee or Holder.
(f) RESERVED.
(g) RESERVED.
(h) Transfer of a Beneficial Interest in the Restricted
Global Warrant Certificate for a Beneficial Interest in the Unrestricted Global
Warrant Certificate. A Holder of a beneficial interest in the Restricted Global
Warrant Certificate may at any time, subject to the rules and procedures of the
Depositary, transfer all or part of its interest in the Restricted Global
Warrant Certificate for an equivalent interest in the Unrestricted Global
Warrant Certificate in accordance with this subsection (h). Upon receipt by the
Warrant Custodian of:
(i) an instruction given in accordance with the
procedures of the Depositary on behalf of a Holder of a beneficial
interest in the Restricted Global Warrant Certificate to reduce such
Global Warrant Certificate by the amount of the interest to be
transferred and increase the Unrestricted Global Warrant Certificate by
a like amount, and
(ii) a certificate (which may be submitted by
facsimile promptly followed by an original) in substantially the form
set forth in Exhibit B to this Agreement from the Person designated by
the Depositary as such Holder, to the effect that such interest is
being transferred in reliance on Rule 144 (in which case the Warrant
Custodian shall also receive an opinion of counsel reasonably
acceptable to the Company and to the Warrant Custodian to the effect
that such transfer is in compliance with the Securities Act) or
pursuant to an effective registration statement under the Securities
Act,
then the Warrant Custodian, in accordance with the standing instructions and
procedures existing among the Depositary and the Warrant Custodian, will so
reduce the Restricted Global Warrant Certificate and increase the Unrestricted
Global Warrant Certificate, and the transfer and exchange of such beneficial
interest shall be effected through the Warrant Custodian and the Depositary in
accordance with this Agreement and the procedures of the Depositary and the
Warrant Custodian therefor.
(i) Restrictions on Transfer of Global Warrant Certificates.
Notwithstanding any other provisions of this Agreement (other than
the provisions set forth in subsection (j) of this Section 3.4), a Global
Warrant Certificate may not be transferred except as a whole by the
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Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(j) Issuance of Definitive Warrant Certificates in the Absence of
a Depositary. If at any time the Depositary notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Warrant Certificates and a successor Depositary for the Global Warrant
Certificates is not appointed by the Company within 90 days after delivery of
such notice, then the Warrant Custodian, in accordance with the standing
instructions and procedures existing among the Depositary and the Warrant
Custodian, will cancel the Global Warrant Certificates, the Company will execute
Definitive Warrant Certificates representing an aggregate number of Warrants
equal to the aggregate number of Warrants evidenced by the Global Warrant
Certificates, and the Warrant Agent will countersign and deliver to each Person
designated by the Depositary as a Holder of a beneficial interest in the Global
Warrant Certificates a Definitive Warrant Certificate evidencing a number of
Warrants equal to such interest.
(k) Legends. Except as permitted by this subsection (k), the
Restricted Global Warrant Certificate and the Definitive Warrant Certificates
(and all Warrant Certificates issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the form set forth in Exhibit A to
this Agreement. A Definitive Warrant Certificate that does not bear the legends
set forth in Exhibit A to this Agreement will be executed, countersigned and
delivered in the case of (i) a transfer pursuant to an effective registration
statement under the Securities Act of a Transfer Restricted Warrant in
accordance with subsection (c)(ii)(B) of this Section 3.4, (ii) a transfer in
reliance on Rule 144 of a Transfer Restricted Warrant in accordance with
subsection (c)(ii)(D) of this Section 3.4; (iii) a transfer pursuant to an
effective registration statement under the Securities Act of a beneficial
interest in the Restricted Global Warrant Certificate in accordance with
subsection (e)(ii)(B) of this Section 3.4; (iv) a transfer in reliance on Rule
144 of a beneficial interest in the Restricted Global Warrant Certificate in
accordance with subsection (e)(ii)(D) of this Section 3.4; or (v) a transfer or
exchange of a beneficial interest in the Unrestricted Global Warrant Certificate
or of a Warrant represented by a Definitive Warrant Certificate that is not a
Transfer Restricted Warrant.
(l) Cancellation and/or Adjustment of Global Warrant Certificate.
At such time as all interests in a Global Warrant Certificate have either been
exchanged for Definitive Warrant Certificates, exercised for shares of Common
Stock or canceled, such Global Warrant Certificate shall be returned to or
retained and canceled by the Warrant Agent. At any time prior to such
cancellation, if any beneficial interest in a Global Warrant Certificate is
exchanged for Definitive Warrant Certificates, exercised for shares of Common
Stock or canceled, the number of Warrants represented by such Global Warrant
Certificate shall be reduced and an endorsement shall be made on such Global
Warrant Certificate, by the Warrant Agent or the Warrant Custodian, at the
direction of the Warrant Agent, to reflect such reduction.
(m) No service charge shall be payable by any Holder for any
registration of transfer or exchange of Warrant Certificates, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any
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registration of transfer or exchange of Warrant Certificates other than
exchanges not involving any transfer.
SECTION 3.5 EXECUTION AND DELIVERY.
The Warrant Certificates shall be executed on behalf of the Company
by its Chief Executive Officer, its President or its Chief Financial Officer,
under its corporate seal reproduced thereon, attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Warrant
Certificates may be manual or facsimile. Warrant Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the delivery of such
Warrant Certificates or the date they are countersigned by the Warrant Agent.
No Warrant Certificate or the Warrants represented thereby
shall be valid or be entitled to any benefit under this Agreement unless such
Warrant Certificate has been countersigned by an authorized officer of the
Warrant Agent by manual signature. All Warrant Certificates shall be dated the
date they are countersigned by the Warrant Agent.
At any time and from time to time after the execution and delivery
of this Agreement, the Company shall deliver Warrant Certificates executed by
the Company in accordance with this Section 3.5 to the Warrant Agent. Subject to
Section 3.1 of this Agreement, the Warrant Agent shall, upon the written request
of a Responsible Officer of the Company, countersign and deliver Warrant
Certificates representing such number of Warrants, registered in such names and
bearing such legends as may be specified in such request. The Warrant Agent
shall also countersign and deliver Warrant Certificates as otherwise provided in
this Agreement.
SECTION 3.6. DESTROYED, LOST, MUTILATED OR STOLEN WARRANT CERTIFICATES.
If there shall be delivered to the Company and the Warrant
Agent evidence to their satisfaction of the destruction, loss, mutilation or
theft of any Warrant Certificate and such security and indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, and in the case
of mutilation, upon surrender of such Warrant Certificate to the Warrant Agent
for cancellation, the Company shall execute and the Warrant Agent shall
countersign and deliver, in lieu of or exchange for any such destroyed, lost,
mutilated or stolen Warrant Certificate, a new Warrant Certificate for a like
number of Warrants, bearing a number not contemporaneously outstanding.
Upon the issuance of any new Warrant Certificate under this
Section 3.6, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
Every substitute Warrant Certificate issued and delivered pursuant
to this Section 3.6 in lieu of any destroyed, lost or stolen Warrant Certificate
shall constitute an original additional
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contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of, and be subject to all the limitations of
rights set forth in, this Agreement equally and proportionately with any and all
other Warrant Certificates duly issued and delivered hereunder.
The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) any and all other rights and remedies with
respect to the replacement of destroyed, lost, mutilated or stolen Warrant
Certificates notwithstanding any law or statute existing or hereafter enacted to
the contrary.
SECTION 3.7. PERSONS DEEMED OWNERS.
The Company and the Warrant Agent, and any agent of the Company or
the Warrant Agent, may deem and treat the Person in whose name a Warrant
Certificate is registered in the Warrant Register as the absolute, true and
lawful owner of such Warrant Certificate and the Warrants represented thereby
(notwithstanding any notation of ownership or other writing thereon made by any
Person) for all purposes, and neither the Company nor the Warrant Agent nor any
of their respective agents shall be affected by any notice or knowledge to the
contrary.
SECTION 3.8. CANCELLATION OF WARRANT CERTIFICATES.
All Warrant Certificates surrendered for registration of transfer,
exchange or exercise shall be delivered to the Warrant Agent and shall be
promptly canceled by the Warrant Agent. The Company may at any time deliver to
the Warrant Agent for cancellation any Warrant Certificates previously delivered
hereunder that the Company may have acquired in any manner whatsoever, and all
Warrant Certificates so delivered shall be promptly canceled by the Warrant
Agent. No Warrant Certificates shall be delivered in lieu of or in exchange for
any Warrant Certificates canceled by the Warrant Agent, except as expressly
permitted by this Agreement.
SECTION 3.9. NO RIGHTS AS STOCKHOLDERS.
Nothing contained in this Agreement or in the Warrant Certificates
shall be construed as conferring upon the Holders or any transferees any of the
rights of stockholders of the Company, including without limitation, the right
to vote or to receive dividends or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter. Nothing contained in this Agreement shall be construed as
imposing any liabilities on such holder to purchase any securities or as a
stockholder of the Company, whether such liabilities are assumed by the Company
or by creditors or stockholders of the Company or otherwise.
NO. ARTICLE 4
EXERCISE OF WARRANTS
SECTION 4.1. EXERCISE PERIOD.
Subject to and upon compliance with the provisions of this
Agreement, at the option of the Holder thereof, a Warrant may be exercised at
the Exercise Price in effect at the time of
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exercise, at any time on any Business Day during the period (the "Exercise
Period") commencing on the Detachment Date and ending 5:00 P.M., New York time,
on April 29, 2001 (the "Expiration Date"), unless the Exercise Period is
extended by the Company. Following the Expiration Date, any Warrant not
previously exercised shall expire and be null and void, and all rights of the
Holder under the Warrant Certificate evidencing such Warrant and under this
Agreement shall cease.
SECTION 4.2. SHARES ISSUABLE UPON EXERCISE; EXERCISE PRICE.
Subject to and upon compliance with the provisions of this
Agreement, each Warrant shall entitle the Holder thereof to purchase from the
Company one share of Common Stock of the Company at an exercise price (the
"Exercise Price") of $20.00 per share of Common Stock. The Exercise Price and
the number and kind of securities or other property issuable upon exercise of
the Warrants shall be adjusted in certain instances as provided in Section 4.6
of this Agreement.
SECTION 4.3. METHOD OF EXERCISE.
Each Warrant may be exercised in whole or in part. In order to
exercise any Warrants, the Holder thereof shall present and surrender the
Warrant Certificate evidencing the Warrants to the Warrant Agent at the office
or agency of the Company maintained for that purpose pursuant to Section 8.5,
with the Notice of Exercise on the Warrant Certificate duly completed and
executed by the Holder or by the Holder's legal representative or attorney duly
authorized in writing to the satisfaction of the Warrant Agent, and accompanied
by payment in full of the aggregate Exercise Price for the number of shares of
Common Stock specified in the Notice of Exercise, and of any other amounts
required to be paid in connection with such exercise, (i) by cash or certified
or official bank check, (ii) by surrendering additional Warrants or shares of
Common Stock for cancellation to the extent that the Company may lawfully accept
shares of Common Stock in the Company, or (iii) by such other means as is
acceptable to the Company in the lawful currency of the United States of America
which as of the time of payment is legal tender for payment of public or private
debts. In the event the holder exercising its Warrants holds an interest in a
Global Warrant Certificate, such holder shall exercise Warrants owned of record
by such holder and represented by a Global Warrant Certificate by delivering (i)
proof of record ownership of such Warrants if required by the Company and (ii) a
notice of exercise in substantially the form set forth in the Warrant as
appropriately adjusted. The value per share of Common Stock surrendered in
accordance with this Section 4.3 equals the current market price per share of
Common Stock as defined in Section 4.6(e) of this Agreement as of the business
day next preceding the date the Warrant Certificates are surrendered for
exercise and the value of a Warrant being equal to the difference between such
current market price and the Exercise Price.
Warrants shall be deemed to have been exercised immediately
prior to the close of business on the date of surrender of the Warrant
Certificate representing such Warrants for exercise in accordance with the
foregoing provisions, and at such time the Person or Persons entitled to receive
the Common Stock issuable upon exercise shall be treated for all purposes as the
record holder or holders of such Common Stock at the close of business on the
date of such surrender, notwithstanding that the stock transfer books of the
Company shall then be closed or
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that certificates representing such shares of Common Stock shall not then be
actually delivered to such Person or Persons.
If any Warrant Certificate is surrendered for the exercise of
less than all the Warrants represented thereby, the Company shall execute, and
the Warrant Agent shall countersign and deliver to the Holder thereof, at the
expense of the Company, a new Warrant Certificate, dated the date of such
exercise, evidencing the number of Warrants remaining unexercised unless such
Warrants shall have expired.
SECTION 4.4. ISSUANCE OF COMMON STOCK.
Upon the exercise of any Warrants, the Warrant Agent shall (i)
cause an amount equal to the amount paid by the Holder upon exercise to be paid
to the Company by depositing the same in an account designated by the Company
for that purpose or delivering such payment in such other manner as is
acceptable to the Company, and (ii) immediately inform the Company in writing of
such exercise and deposit or delivery, including the number of Warrants
exercised and the instructions of the exercising Holder with respect to delivery
of the shares of Common Stock issuable upon such exercise. The Company shall
then issue within five days and deliver or cause to be delivered at such office
or agency maintained pursuant to Section 8.5 a certificate or certificates
evidencing the number of full shares of Common Stock issuable upon exercise of
such Warrants, registered in such name or names as may be directed by such
Holder in the Notice of Exercise, together with a check for payment in lieu of
any fractional share, as provided in Section 4.5 of this Agreement.
SECTION 4.5. FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon exercise
of any Warrants. If more than one Warrant shall be exercised at one time by the
same Holder, the number of full shares which shall be issuable upon exercise
thereof shall be computed on the basis of the aggregate number of shares of
Common Stock issuable under the Warrants so exercised. In lieu of any fractional
share of Common Stock that would otherwise be issuable upon exercise of any
Warrant or Warrants, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the market price per share
of Common Stock (as determined by the Board of Directors of the Company or in
any manner prescribed by the Board of Directors) at the close of business on the
day such exercise is deemed to have occurred.
SECTION 4.6. ADJUSTMENT OF EXERCISE PRICE.
(a) In the event the Company after the date hereof shall (i) pay a
dividend or make a distribution in shares of capital stock of the Company, or
(ii) subdivide its outstanding shares of Common Stock, or (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its shares of Common Stock any shares of capital
stock of the Company, the exercise right and the Exercise Price in effect
immediately prior to such action shall be adjusted so that the holder of any
Warrant thereafter surrendering such Warrant for exercise shall be entitled to
receive the number of shares of capital stock of the Company that such holder
would have owned immediately following such action had such
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Warrant been exercised immediately prior to the record date for such action or
to such action, as appropriate. An adjustment made pursuant to this Section 4.6
shall, in the case of a subdivision, combination or reclassification become
effective retroactively immediately after the record date thereof. If, as a
result of an adjustment made pursuant to this Section 4.6, the holder of any
Warrant thereafter surrendered for exercise shall become entitled to receive
shares of two or more classes of capital stock of the Company, the Board of
Directors of the Company (whose determination shall be described in a
certificate filed with the Warrant Agent) shall in good faith determine the
allocation of the adjusted Exercise Price between or among shares of such
classes of capital stock.
(b) In the event the Company after the date hereof shall
distribute to all the holders of Common Stock any dividend or other distribution
(other than a cash distribution made as a dividend payable out of earnings or
out of any earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company) or any evidence of indebtedness or
any assets in respect of the Common Stock, or rights to subscribe or purchase
shares of Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in Section 4.6(e) of this Agreement) at
the record date referenced below, then, and thereafter successively upon each
such distribution, the Exercise Price in effect immediately prior to such
distribution shall forthwith be reduced to a price determined by multiplying the
Exercise Price in effect immediately prior to such distribution by a fraction
the numerator of which shall be the current market price per share of Common
Stock (as defined in Section 4.6(e) of this Agreement) at the record date
referenced below, less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be described in a
certificate filed with the Warrant Agent) of the portion of such evidences of
indebtedness or such assets so distributed, or of such subscription or purchase
rights, applicable to one share of Common Stock and the denominator of which
shall be such current market price per share of Common Stock. An adjustment made
pursuant to Section 4.6(b) shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to receive
such distribution.
(c) After each adjustment of the Exercise Price pursuant to
Section 4.6(a) and 4.6(b), the total number of shares of Common Stock or
fractional part thereof purchasable upon the exercise of each Warrant shall be
proportionately adjusted to such number of shares or fractional part thereof as
the total Exercise Price of the number of shares or fractional part thereof
purchasable immediately prior to such adjustment will buy at the adjusted
Exercise Price.
(d) The certificate of any independent firm of public
accountants of recognized national standing selected by the Board of Directors
of the Company shall be conclusive evidence of the correctness of any
computations under Sections 4.6(a) and 4.6(b) of this Agreement.
(e) For the purposes of Sections 4.3, 4.6(a) and 4.6(b) of this
Agreement, the current market price per share of Common Stock as of any date of
determination shall be deemed to be the average of the daily closing prices for
the consecutive 20 trading days preceding the day of determination. The closing
price for the day shall be the last reported sale price regular way or, in case
no such reported sale takes place on that day, the average of the reported
closing bid and
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asked xxxxx regular way, in either case as officially reported by the principal
stock exchange on which the Common Stock is listed or admitted to trading, or,
if the Common Stock is not listed or admitted to trading on any national
securities exchange, the average of closing bid and asked prices as furnished by
the National Association of Securities Dealers, Inc. through the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
similar organization if NASDAQ is no longer reporting such information.
(f) No adjustment of the Exercise Price shall be required under
Sections 4.6(a) and 4.6(b) of this Agreement if the amount of such adjustment is
less than 1%; provided, however, that any adjustments that by reason of the
foregoing are not required at the time to be made shall be carried forward and
taken into account and included in determining the amount of any subsequent
adjustment. If the Company shall take a record of holders of Common Stock for
the purpose of entitling them to receive any dividend or distribution and
thereafter and before the distribution to stockholders of any such dividend or
distribution, legally abandon its plan to pay or deliver such dividend or
distribution, then no adjustment of the Exercise Price shall be required by
reason of the taking of such record. All calculations under this Section 4.6
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Whenever the Exercise Price is adjusted pursuant to this
Section 4.6, the Company shall promptly file with the Warrant Agent and with
each transfer agent for the Common Stock a certificate signed by the Chief
Executive Officer, President or Chief Financial Officer and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
setting forth in reasonable detail the events requiring the adjustment, the
method by which such adjustment was calculated, and specifying the Exercise
Price and the number or kind or class of shares or other securities or property
purchasable upon exercise of the Warrants after giving effect to such
adjustment, and will cause to be mailed, first class, postage prepaid a summary
thereof to the registered holders of the Warrant Certificates at their last
addressees as they appear on the registry books of the Warrant Agent.
(h) For the purposes of this Section 4.6, the term "Common Stock"
shall mean (i) the class of stock designated as the common stock, par value
$0.0001 per share, of the Company, at the date of this Agreement and (ii) any
other class of stock resulting from successive changes or reclassifications of
such Common Stock consisting solely of changes in par value, or from par value
to no par value, or from no par value to par value. In the event that at any
time, as a result of an adjustment made pursuant to Section 4.6(a) of this
Agreement, shares of capital stock of the Company other than shares of Common
Stock are issuable upon exercise of the Warrants, thereafter the number of such
other shares so issuable shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in this Section 4.6, and all other
provisions of this Agreement with respect to Common Stock shall apply on like
terms to any such other shares. Subject to the foregoing, and unless the context
requires otherwise, all references to Common Stock in this Agreement and in the
Warrant Certificates shall, in the event of an adjustment pursuant to this
Section 4.6, be deemed to refer also to any other securities or property then
issuable upon exercise of the Warrants as a result of such adjustments.
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SECTION 4.7. RESERVED.
SECTION 4.8. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(a) the Company shall declare a dividend (or any
other distribution) on the Common Stock payable otherwise than
exclusively in cash; or
(b) the Company shall authorize the granting to the
holders of the Common Stock of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any
other rights; or
(c) of any reclassification of the Common Stock of
the Company (other than a merger which is effected solely to change the
jurisdiction of incorporation of the Company), or of any consolidation
or merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall, if notice of such event is sent to the holders of the
Company's Common Stock generally, cause to be filed at each office or agency
maintained pursuant to Section 8.5 for the purpose of exercising Warrants, and
shall cause to be mailed to all Holders at their last addresses as they shall
appear in the Warrant Register, on or prior to the date information regarding
such corporate action is sent to holders of the Company's Common Stock
generally, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (y) the date on which such reclassification,
consolidation, merger, transfer, dissolution, liquidation or winding up (or
amendment thereto) is expected to become effective, and the date as of which it
is expected that holders of record of such class of Common Stock shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding up. The Warrant Agent shall not be
responsible for giving such notice or for the contents of any such notice to the
Holders.
SECTION 4.9. COMPANY TO RESERVE COMMON STOCK.
The Company shall, at all times during the Exercise Period,
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock, for the purpose of effecting the exercise of
Warrants, the full number of shares of Common Stock then issuable upon the
exercise of all outstanding Warrants.
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SECTION 4.10. TAXES ON EXERCISES.
The Company shall pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on exercise of Warrants
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of (i) income of the Holder or (ii) any transfer
involved in the issue and delivery of shares of Common Stock in name other than
that of the Holder of the Warrant or Warrants to be exercised, and no such issue
or delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such taxes or has established to the
satisfaction of the Company that such tax has been paid.
SECTION 4.11. COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock that may be
issued upon exercise of any Warrants will, upon issue and payment of the
Exercise Price therefor, be validly issued, fully paid and nonassessable and
free and clear from all taxes, liens, charges, security interests, encumbrances
and other restrictions created by or through the Company.
SECTION 4.12. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the Company
(each, a "Transaction"), the Person formed by such Transaction or which acquires
such assets, as the case may be (the "Acquiror"), shall execute and deliver to
the Warrant Agent prior to the consummation of the Transaction a warrant
agreement (or supplement to this Warrant Agreement) providing that the Holder of
each Warrant then outstanding shall have the right thereafter, during the period
such Warrant shall be exercisable in accordance with this Warrant Agreement, to
exercise such Warrant only into the kind and amount of securities, cash and
other property (collectively, the "Consideration") receivable upon such
Transaction by a holder of the number of shares of Common Stock of the Company
into which such Warrant might have been exercised immediately prior to such
Transaction, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be (a "constituent person"), or an affiliate of a constituent person
and (ii) failed to exercise such Holder's rights of election, if any, as to the
kind or amount of Consideration receivable upon such Transaction (provided that
if the kind or amount of Consideration receivable upon such Transaction is not
the same for each share of Common Stock held immediately prior to such
Transaction by Persons other than a constituent person or an affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 4.12 the kind and
amount of Consideration receivable upon such Transaction by each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such warrant agreement shall provide for
adjustments upon the occurrence of events with respect to the Acquiror similar
to the events described in Section 4(a) and (b) of this Agreement, which, for
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events subsequent to the effective date of such warrant agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article of this Agreement. The above provisions of this Section shall similarly
apply to successive Transactions.
SECTION 4.13. NO CHANGE OF WARRANT NECESSARY.
Irrespective of any adjustment in the Exercise Price or in the number
or kind of shares or other property issuable upon exercise of the Warrants, the
Warrant Certificates theretofore or thereafter issued may continue to express
the same Exercise Price and number and kind of shares issuable upon exercise per
Warrant as are stated in the Warrant Certificates initially issued pursuant to
this Agreement.
SECTION 4.14. ENFORCEMENT OF RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder,
without the consent of the Warrant Agent or any other Holder, may enforce, and
may institute and maintain any suit, action or proceeding against the Company to
enforce, such Holder's right to exercise the Warrants evidenced by such Holder's
Warrant Certificate in the manner provided in such Warrant Certificate and this
Agreement.
SECTION 4.15. AVAILABLE INFORMATION.
The Company shall promptly file with the Warrant Agent (and cause the
Warrant Agent to deliver to the holders of the Warrants upon request to the
Company) copies of its annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
ARTICLE 5
RESERVED
ARTICLE 6
RESERVED
ARTICLE 7
AMENDMENTS
SECTION 7.1. AMENDMENT OF AGREEMENT.
The Warrant Agent and the Company may, without the consent of any
Holders, amend this Agreement in such manner as they shall deem appropriate to
cure any ambiguity, to correct any defective or inconsistent provision or
manifest mistake or error herein contained, or in any other manner that they may
deem necessary or desirable and which shall not adversely affect the
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rights of the Holders of Warrants. This Agreement shall not otherwise be
modified, supplemented or amended in any respect by the Warrant Agent and the
Company, except with the consent in writing of the Holders of outstanding
Warrants representing not less than a majority of the Warrants then outstanding;
provided, however, that the consent in writing of each and every Holder shall be
required for any such modification, supplement or amendment which (a) changes
the Exercise Period (except to extend the expiration of the Exercise Period to a
later date) or increases the Exercise Price, or (b) reduces the percentage of
Holders of outstanding Warrants the consent of who is required to modify,
supplement or amend this Agreement.
Any modification, supplement or amendment pursuant to this Section 7.1
shall be binding upon all present and future Holders, whether or not they have
consented to such modification, supplement or amendment, and whether or not
notation of such modification, supplement or amendment is made upon any Warrant
Certificate issued to such Holder. Section 7.2. Record Date.
The Company may set a record date for purposes of determining the
identity of Holders entitled to consent to any modification, supplement or
amendment to this Agreement. If the Company does not set a record date, the
record date shall be 30 days prior to the first solicitation of such consent.
ARTICLE 8
MISCELLANEOUS PROVISIONS
SECTION 8.1. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall constitute
the same instrument.
SECTION 8.2. GOVERNING LAW.
THIS AGREEMENT AND THE WARRANT CERTIFICATES ISSUED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
SECTION 8.3. DESCRIPTIVE HEADINGS.
The descriptive headings of this Agreement are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
SECTION 8.4. NOTICES.
Any notice, request or other document permitted or required hereunder
to be given to any Holder shall be sufficiently given if in writing and mailed
first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Warrant Register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in
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any notice so mailed, to any particular Holders shall affect the
sufficiency of such notice with respect to other Holders. Any notice required
hereunder to be given to any Holder may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Warrant Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Any notice, request, waiver, consent or other document provided or
permitted by this Agreement to be given to (i) the Warrant Agent by any Holder
or by the Company shall be sufficient for every purpose hereunder if in writing
and mailed, first-class postage prepaid, to and received by the Warrant Agent at
its Corporate Trust Office, and (ii) the Company by the Warrant Agent or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company at the address of its principal office specified in the first
paragraph of this Agreement or at any other address previously furnished in
writing to the Warrant Agent by the Company.
In the event the Warrant Agent shall receive any notice, demand or
other document addressed to the Company by any Holder, the Warrant Agent shall
promptly forward such notice or demand to the Company.
SECTION 8.5. MAINTENANCE OF OFFICE.
So long as any of the Warrants remain outstanding, the Company shall
designate and maintain in the State of New York an office or agency where
Warrant Certificates may be surrendered for registration of transfer or for
exchange, where Warrants may be surrendered for exercise and where notices and
demands to or upon the Company in respect of the Warrants and this Warrant
Agreement may be served. The Company may from time to time change or rescind
such designation as it may deem desirable or expedient. The Company will give
prompt written notice to the Warrant Agent of the location, and any change in
the location, of such office or agency. The Company hereby designates the
Corporate Trust Office of the Warrant Agent as the initial agency maintained for
each such purpose. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to notify the Warrant Agent of the
location thereof or of any change in the location thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Warrant Agent, and the Company hereby appoints the Warrant Agent
as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the State of New York) where Warrant
Certificates may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the State of New York for such
purposes. The Company shall give prompt written notice to the Warrant Agent of
any such designation or rescission, and of any change in the location of, any
such other office or agency.
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SECTION 8.6. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 8.7. SEPARABILITY.
In case any provision in this Agreement or in the Warrant Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 8.8. PERSONS HAVING RIGHTS UNDER AGREEMENT.
Nothing in this Agreement or in the Warrant Certificates, expressed or
implied, is intended, or shall be construed, to give any Person, other than the
parties hereto and their successors hereunder, and the Holders of Warrants, any
benefit, right, remedy or claim under or by reason of this Agreement.
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IN WITNESS WHEREOF, the Company and the Warrant Agent have caused this
Agreement to be executed by their duly authorized officers as of the date set
forth below.
HEALTHCARE FINANCIAL PARTNERS REIT, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Chief Financial Officer
Witness: Dated: May 6, 1998
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Witness: Dated: May 6, 1998
By: /s/ Xxx Xxxxxxxx
--------------------------
Name: Xxx Xxxxxxxx
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
Certificate Number ____________ Warrants
VOID AFTER 5:00 p.m. on April 29, 2001
WARRANTS TO PURCHASE
__________ SHARES OF COMMON STOCK
HEALTHCARE FINANCIAL PARTNERS REIT, INC.
(1)UNLESS AND UNTIL EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THE SECURITIES EVIDENCED HEREBY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX
XXXX, XXX XXXX) ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(2)THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
------------------------
(1) Paragraph to be included in a Warrant Certificate issued in the form of a
Global Warrant Certificate.
(2)Paragraph to be included in a Warrant Certificate representing Transfer
Restricted Warrants.
30
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THE
SECURITIES EVIDENCED HEREBY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER ANY SECURITY EVIDENCED HEREBY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS
TWO YEARS AFTER THE LATER OF (X) THE ORIGINAL ISSUE DATE HEREOF AND (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATED PERSON OF THE
COMPANY WAS THE OWNER OF SUCH SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER," AS SUCH TERM IS DEFINED IN, AND IN COMPLIANCE WITH, RULE 144A
PROMULGATED UNDER THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 PROMULGATED UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
WARRANT AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E), TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
This Warrant Certificate certifies that ________, or
registered assigns, is the Holder of _________ Warrants (the
"Warrants") to purchase shares of Common Stock, par value $0.0001 per
share (the "Class A Common Stock"), of HealthCare Financial Partners
REIT, Inc., a Maryland corporation (the
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"Company"). Each Warrant entitles the Holder, at any time on any
Business Day during the Exercise Period (as defined in the Warrant
Agreement), to purchase from the Company one share of Common Stock of
the Company at an Exercise Price of $20.00 per share (as such Exercise
Price may be amended in accordance with this Warrant Certificate or the
Warrant Agreement) upon surrender of this Warrant Certificate and
payment of the Exercise Price at any office or agency maintained for
that purpose by the Company.
Any Warrants not exercised on or prior to 5:00 p.m., New York
City time, on the Expiration Date shall thereafter be null and void.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE CONFLICT OF LAW PROVISIONS THEREOF.
Reference is hereby made to the further provisions of this
Warrant Certificate on the reverse hereof, which provisions shall for
all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be entitled to any benefit
under the Warrant Agreement between the Company and The Bank of New
York, as Warrant Agent (the "Warrant Agreement") or valid for any
purpose unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed and a facsimile of its corporate seal
to be imprinted thereon.
Dated:
HEALTHCARE FINANCIAL PARTNERS REIT, INC.
By:
-------------------------------------
Name:
Title:
Attest:
--------------------
3
32
THE BANK OF NEW YORK, as Warrant Agent
By:
-------------------------------------
Name:
Title:
4
33
[Reverse Side]
The Warrants represented by this Warrant Certificate are part
of a duly authorized issue of Warrants of HealthCare Financial Partners
REIT, Inc. (the "Company") expiring 5:00 p.m., New York City time, on
the Expiration Date. The Warrants represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions
set forth in the Warrant Agreement (the "Warrant Agreement"), by and
between the Company and The Bank of New York (the "Warrant Agent"),
which Warrant Agreement and any amendments thereto are hereby
incorporated by reference in and made a part of this instrument, and to
which reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Warrant Agent and the Holders of
Warrants. A copy of the Warrant Agreement may be obtained from the
Company at 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000 or the
Warrant Agent at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Stock Transfer Administration, by a written request from the
Holder hereof or which may be inspected by any Holder or such Holder's
agent at the principal office of the Company or the Warrant Agent. [The
Warrants represented hereby are entitled to the benefits of a
Registration Rights Agreement dated as of May 6, 1998.](3)
Subject to and upon compliance with the provisions of the
Warrant Agreement, each Warrant entitles the Holder, at any time on any
Business Day during the Exercise Period to purchase from the Company
one share of Common Stock, $0.0001 par value ("Common Stock") (or such
other number of shares of Common Stock if an adjustment has been made
as provided in the Warrant Agreement), of the Company at an Exercise
Price of $20.00 per share (or at the current adjusted Exercise Price if
an adjustment has been made as provided in the Warrant Agreement) The
Warrants may be exercised upon the presentation and surrender of this
Warrant Certificate to the Company at its office or agency maintained
for that purpose, with the form of Notice of Exercise set forth hereon
duly completed and executed, accompanied by payment of the Exercise
Price for each such Warrant exercised and any other amounts required to
be paid, as provided in the Warrant Agreement. In the event the holder
exercising its Warrants holds an interest in a Global Warrant
Certificate, such holder shall exercise Warrants owned of record by
such holder and represented by a Global Warrant Certificate by
delivering (i) proof of record ownership of such Warrants if required
by the Company and (ii) a notice of exercise in substantially the form
set forth below as appropriately adjusted. The Exercise Price shall be
payable
--------------------------
(3) Bracketed language to be included if the Warrant Certificate represents
Transfer Restricted Warrants.
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(i) by cash or certified or official bank check, (ii) by surrendering
additional Warrants or shares of Common Stock for cancellation to the
extent that the Company may lawfully accept shares of Common Stock in
the Company, or (iii) by such other means as is acceptable to the
Company in the lawful currency of the United States of America which as
of the time of payment is legal tender for payment of public or private
debts. The value per share of Common Stock surrendered in accordance
with this provision equals the current market price per share of Common
Stock as defined in the Warrant Agreement as of the business day next
preceding the date the Warrant is surrendered for exercise and the
value of this Warrant being equal to the difference between such
current market price and the Exercise Price. The Exercise Price and the
number and kind of securities or other property issuable upon exercise
of each Warrant is subject to adjustment as provided in the Warrant
Agreement.
As soon as practicable after the exercise of any Warrants, the
Company shall issue and deliver, or cause to be delivered, to the
Holder, at such office or agency maintained for such purpose pursuant
to the Warrant Agreement, a certificate or certificates evidencing the
number of full shares of Common Stock to which such Holder is entitled,
registered in such name or names as may be directed by such Holder
pursuant to the Notice of Exercise set forth on this Warrant
Certificate. No fractional shares of Common Stock will be issued upon
exercise of any Warrant, but instead of any fractional interest, the
Company shall pay to the Holder a cash adjustment as provided in the
Warrant Agreement.
In the case of the exercise of less than all the Warrants
represented hereby, this Warrant Certificate shall be canceled upon the
surrender hereof and a new Warrant Certificate or Warrant Certificates
shall be issued and delivered for the balance of such Warrants
represented hereby.
Prior to the exercise of any Warrant represented hereby, the
Holder shall not be entitled to any rights of a stockholder of the
Company by reason of such Person being a Holder, including, without
limitation, the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant
Agreement.
The Warrant Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of
Warrants under the Warrant Agreement at any time by the Company and the
Warrant Agent with the consent of the Holders of at least a majority of
the Warrants at the time outstanding. Any such consent shall be
conclusive and binding upon the Holder of this Warrant Certificate and
upon all future Holders of any Warrant Certificate issued upon the
registration of transfer of the Warrants evidenced hereby, or in
exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made thereon.
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As provided in the Warrant Agreement and subject to the
limitations set forth therein, transfer of the Warrants represented by
this Warrant Certificate is registrable upon surrender of this Warrant
Certificate at the office or agency of the Company maintained for that
purpose, and thereupon one or more new Warrant Certificates
representing the Warrants so transferred will be issued to the
designated transferee or transferees. As provided in the Warrant
Agreement and subject to the limitations set forth therein, this
Warrant Certificate is exchangeable for new Warrant Certificates
representing a like number of Warrants, as requested by the Holder
surrendering the same.
No service charge shall be payable by a Holder for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Warrant Certificate for
registration of transfer, the Company and the Warrant Agent and any
agent of the Company or the Warrant Agent may treat the Person in whose
name this Warrant Certificate is registered as the absolute, true and
lawful owner hereof and of the Warrants represented hereby
(notwithstanding any notation or ownership or other writing hereon made
by any Person) for all purposes, and shall not be affected by any
notice or knowledge to the contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in
the Warrant Agreement.
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise ________
of the Warrants represented by this Warrant Certificate and purchase
the whole number of shares issuable and deliverable upon exercise of
such Warrants, and herewith tenders payment for such shares in
accordance with the terms of the Warrant Agreement. The undersigned
hereby directs that the certificate or certificates for the shares
issuable and deliverable upon exercise, together with any check in
payment for fractional shares and any Warrant Certificate representing
any unexercised Warrants represented by this Warrant Certificate, be
issued in the name of and delivered to the undersigned, unless a
different name is indicated below. The undersigned will pay any
transfer taxes or other governmental charge payable with respect to any
such shares to be issued in the name of a person other than the
undersigned.
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INSTRUCTIONS FOR REGISTRATION OF SHARES
(please typewrite or print)
Name:_________________________________________________________________
Address:______________________________________________________________
Social Security or Other Taxpayer Identification Number:______________
Dated: ____________________
Signature: ___________________________
Note: Signature must conform to name of Holder appearing on face
hereof)
Signature must be guaranteed by a member of an accepted medallion
guarantee program if shares of Common Stock are to be issued, or
Warrant Certificate(s) are to be delivered, other than to and in the
name of the Holder.
___________________________________
Signature Guarantee
Fill in for registration of shares of Common Stock and Warrant
Certificate(s) if to be issued otherwise than to the Holder:
____________________________________ Social Security or other
(Name) Taxpayer Identification Number:
____________________________________ ______________________________
(Name)
____________________________________ ______________________________
Please print name and address
(including zip code)
8
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EXHIBIT B
TRANSFER INSTRUCTION
RE: HEALTHCARE FINANCIAL PARTNERS REIT, INC.
WARRANTS
Reference is made to the Warrant Agreement dated as of April __, 1998,
relating to the Warrants (the "Agreement"). This Instruction and
Certification relates to Warrants held by ___________________________
(the "Transferor/Holder"). Capitalized terms not otherwise defined
herein have the meanings set forth in the Agreement.
Instruction of Transfer or Exchange
(to be completed whether or not the Warrants to be transferred or
exchanged are Transfer Restricted Warrants)
1. The Transferor/Holder hereby instructs the Warrant Agent to
(check one box):
[ ] Transfer or exchange one or more Definitive Warrant
Certificates in accordance with Section 3.4(c) of the
Agreement; or
[ ] Transfer one or more Definitive Warrant Certificates for a
beneficial interest in a Global Warrant Certificate in
accordance with Section 3.4(d) of the Agreement; or
[ ] Transfer or exchange a beneficial interest in a Global Warrant
Certificate for one or more Definitive Warrant Certificates in
accordance with Section 3.4(e) of the Agreement; or
[ ] Transfer a beneficial interest in the Restricted Global
Warrant Certificate for a beneficial interest in the
Unrestricted Global Warrant Certificate in accordance with
Section 3.4(h) of the Agreement.
2. The Transferor/Holder has requested Definitive
Warrant Certificates above and hereby further instructs the Warrant
Agent to issue such Definitive Warrant Certificates without the
restrictive legends referenced in Section 3.4(k) of the Agreement
(check box if applicable): [ ]
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Certification
(to be completed for a transfer or exchange of
Transfer Restricted Warrants only)
3. In connection with the transfer or exchange requested
above, the Transferor/Holder does hereby certify that (check one box):
[ ] One or more Definitive Warrant Certificates, or an interest in
a Global Warrant Certificate, is being obtained by the
Transferor/Holder, without transfer or change in beneficial
ownership (in accordance with Section 3.4(c)(ii)(A) or Section
3.4(e)(ii)(A) of the Agreement); or
[ ] one or more Definitive Warrant Certificates, or an interest in
a Global Warrant Certificate, is being transferred pursuant to
an effective registration statement under the Securities Act
(in satisfaction of Section 3.4(c)(ii)(B), Section
3.4(d)(ii)(B), Section 3.4(e)(ii)(B) or Section 3.4(h) of the
Agreement).
[ ] one or more Definitive Warrant Certificates, or an interest in
a Global Warrant Certificate, is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in
reliance on Rule 144A (in satisfaction of Section
3.4(c)(ii)(C), Section 3.4(d)(ii)(A) or Section 3.4(e)(ii)(C);
or
[ ] one or more Definitive Warrant Certificates, or an interest in
a Global Warrant Certificate, is being obtained in reliance on
and in compliance with an exemption from the registration
requirements of the Securities Act, other than Rule 144A under
the Securities Act, and an opinion of counsel to the effect
that such transfer complies with, and does not require
registration under, the Securities Act accompanies this
Instruction and Certification (in satisfaction of Section
3.4(c)(ii)(D), Section 3.4(d)(ii)(B), Section 3.4(e)(ii)(D) or
Section 3.4(h) of the Agreement.
--------------------------------------------
[INSERT NAME OF TRANSFEROR/HOLDER]
Date: By:
---------------------- -----------------------
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SCHEDULE I
The Additional Purchasers are as follows:
HealthCare Financial Partners, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
Farallon Capital Partners, L.P.
Farallon Capital Institutional Partners, L.P.
Farallon Capital Institutional Partners II, L.P.
Farallon Capital Institutional Partners III, L.P.
Tinicum Partners, L.P.
Farallon Capital Management, L.L.C.,, on
behalf of The Common Fund
c/o Farallon Capital Management, L.L.C.
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx and Xxxxxxx Xxxxx
Credit Suisse First Boston Corp.
c/o Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
11
