ALGODON GLOBAL PROPERTIES, LLC AND DPEC CAPITAL, INC. WARRANT AGREEMENT Dated as of July 18, 2008
ALGODON GLOBAL PROPERTIES, LLC
AND
DPEC CAPITAL, INC.
Dated as of July 18, 2008
WARRANT AGREEMENT dated as of July 18, 2008 between ALGODON GLOBAL PROPERTIES, LLC, a Delaware limited liability company (the “Company”), and DPEC CAPITAL, INC. (the “Placement Agent”) and its assignees or designees (each hereinafter sometimes referred to with DPEC Capital, Inc. as a “Holder” or the “Holders”).
WHEREAS, the Placement Agent has agreed to act as the placement agent in connection with the Company’s proposed private placement of a minimum of 2,000,000 units and a maximum of 15,000,000 units of non-managing membership interests of the Company (the “Units”), at an offering price of $1.00 per unit (the “Offering”);
WHEREAS, the Company has agreed to issue warrants to the Placement Agent (the “Warrants”) to purchase ten percent (10%) of the aggregate number of Units sold in the Offering;
WHEREAS, as the Offering is being sold on a “best efforts, all or none” basis with respect to the first 2,000,000 Units and on a “best efforts” basis with respect to the remaining Units, the Offering may have multiple closings (each, a “Closing”);
WHEREAS, the Warrants will be issued on the date of each Closing of the Offering by the Company to the Placement Agent in consideration for, and as part of, the Placement Agent’s compensation for serving as Placement Agent; and
WHEREAS, the terms and conditions of the Warrants in which the Warrants will
be issued are set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the agreements herein set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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The Warrant Certificates and the certificates representing the Units or other securities, property or rights issued upon exercise of any Warrants shall be executed on behalf of the Company by the manual or facsimile signature of the then present President or any Vice President of the Company under its corporate seal reproduced thereon, attested to by the manual or facsimile signature of the then present Secretary or any Assistant Secretary of the Company. Warrant Certificates shall be dated the date of execution by the Company upon initial issuance, division, exchange, substitution or transfer.
The Company covenants that during the period any Warrant issued hereunder is outstanding, it will maintain the full right and authority to issue a sufficient number of Units to provide for the issuance of the Units upon the exercise of a Warrant.
The Company shall not by any action, including, without limitation, amending its certificate of formation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms hereunder, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of any Holder against impairment. Without limiting the generality of the foregoing, the Company will (a) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Units upon the exercise of any Warrant, and (b) use all commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations hereunder.
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8. Adjustments of Exercise Price and Number of Units.
(a) Unit Splits, etc. The number and kind of securities purchasable upon the exercise of any Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following. In case the Company shall (i) pay a distribution on its Units, or (ii) subdivide or reclassify its Units, then the number of Units purchasable upon exercise of any Warrant issued hereunder immediately prior thereto shall be adjusted so that the Holder of the Warrant shall be entitled to receive the kind and number of Units or other securities of the Company which it would have owned or have been entitled to receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind and number of Units or other securities of the Company which are purchasable hereunder, the Holder of this Warrant shall thereafter be entitled to purchase the number of Units or other securities resulting from such adjustment at an Exercise Price obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Units purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of Units or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
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(a) if to the registered Holder(s) of the Warrants, to the addresses of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in Section 4 hereof or to such other address as the Company may designate by notice to the Holders.
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16. Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be construed in accordance with the laws of said State without giving effect to the rules of said State governing the conflicts of laws.
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IN WITNESS HEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written.
ATTEST: | ALGODON GLOBAL PROPERTIES, LLC | ||||
By: | InvestProperty Group, LLC, | ||||
Managing Member | |||||
/s/ Xxx Xxxxxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||
Secretary | Name: Xxxxx X. Xxxxxx | ||||
Title: President |
DPEC CAPITAL, INC. | |||
By: | /s/ Xxxxxx Xxxxxxxx | ||
Name: Xxxxxx Xxxxxxxx | |||
Title: Senior Vice President |
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WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT DATED AS OF JULY 18, 2008 BETWEEN THE ISSUER AND DPEC CAPITAL, INC.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, ____________, 2013
Warrant No. ___
____________ Units of Non-managing Membership Interests of the Company
This Warrant Certificate certifies that DPEC Capital, Inc., or its registered assigns, is the registered holder of Warrants to purchase initially, at any time from ____________, 20__ until 5:30 p.m., New York time on ___________, 2013 (“Expiration Date”), up to_________ units of fully-paid and non-assessable non-managing membership interests (the “Units”) of ALGODON GLOBAL PROPERTIES, LLC, a Delaware limited liability company (the “Company”), at the initial exercise price, subject to adjustment in certain events, of $1.00 per Unit (the “Exercise Price”) upon surrender of this Warrant Certificate and payment of the Exercise Price at an office or agency of the Company, but subject to the conditions set forth herein and in the Warrant Agreement dated as of July 18, 2008 between the Company and DPEC Capital, Inc. (the “Warrant Agreement”). Payment of the Exercise Price shall be made by certified or official bank check in New York Clearing House funds payable to the order of the Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the Expiration Date, at which time all Warrants evidenced hereby, unless exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued pursuant to the Warrant Agreement, which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the holders (the words “holders” or “holder” meaning the registered holders or registered holder) of the Warrants.
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The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price and the type and/or number of the Company’s securities issuable thereupon may, subject to certain conditions, be adjusted. In such event, the Company will, at the request of the holder, issue a new Warrant Certificate evidencing the adjustment in the Exercise Price and the number and/or type of securities issuable upon the exercise of the Warrants; provided, however, that the failure of the Company to issue such new Warrant Certificates shall not in any way change, alter, or otherwise impair, the rights of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant Certificate at an office or agency of the Company, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided herein and in the Warrant Agreement, without any charge except for any tax or other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this Certificate, the Company shall forthwith issue to the holder hereof a new Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, and of any distribution to the holder(s) hereof, and for all other purposes, and the Company shall not be affected by any notice 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.
This Warrant Certificate does not entitle any holder thereof to any of the rights of a unit-holder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal.
Dated: ______________, 20__ | |||||
ATTEST: | ALGODON GLOBAL PROPERTIES, LLC | ||||
By: | InvestProperty Group, LLC, | ||||
Managing Member | |||||
By: | ___________________________ | ||||
Secretary | Name: | ||||
Title: |
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AMENDMENT NO. 1 TO WARRANT AGREEMENT
The Warrant Agreement between AGP Global Properties, LLC and DPEC Capital, Inc., dated July 18, 2008 (hereinafter the “Warrant Agreement”), pertaining to the Offering described in the Private Placement Memorandum of the same date, is hereby amended as follows:
With respect to all Units received by investors pursuant to accepted subscriptions in the Offering that were paid for with funds initially loaned to the Company as part of a pre-Offering bridge loan, the Company shall issue to the Placement Agent warrants to purchase 10% of all Units received by such investors, inclusive of the additional Units received as a result of (a) the discount afforded to persons who participated in the pre-Offering bridge loan, and (b) the interest earned by such persons to the extent such interest was used to purchase Units in the Offering (hereinafter “Bridge Warrants”). The Bridge Warrants shall be granted as of the final Termination Date of the Offering and shall have the same terms and conditions as other Warrants to be issued under the Warrant Agreement.
2. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Warrant Agreement.
Dated: As of April 13, 2009
ALGODON GLOBAL PROPERTIES, LLC | |||
By: | InvestProperty Group, LLC | ||
Managing Member | |||
By: | /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | |||
Title: President | |||
DPEC CAPITAL, INC. | |||
By: | /s/ Xxxxxx Xxxxxxxx | ||
Name: Xxxxxx Xxxxxxxx | |||
Title: Director of Compliance |