EXHIBIT 1.2
BEHRINGER HARVARD REIT I, INC.
WARRANT PURCHASE AGREEMENT
__________, 2002
This Warrant Purchase Agreement (the "Agreement") is made by and between
Behringer Harvard REIT I, Inc., a Maryland corporation (the "Company"), and
Behringer Securities LP (the "Warrantholder").
The Company hereby agrees to issue and sell, and the Warrantholder agrees to
purchase, for the total purchase price of $0.0008 per warrant or an aggregate of
up to $2,816, warrants as hereinafter described (the "Soliciting Dealer
Warrants") to purchase up to an aggregate of 3,520,000 Shares (subject to
adjustment pursuant to Section 8 hereof) of the Company's common stock, $0.0001
par value (the "Shares"). The Soliciting Dealer Warrants are being purchased in
connection with a public offering of an aggregate of 84,000,000 Shares (the
"Offering"), pursuant to that certain Dealer Manager Agreement (the "Dealer
Manager Agreement"), dated _____________, 2002 between the Company and the
Warrantholder as the Dealer Manager.
The issuance of the Soliciting Dealer Warrants shall be made in book-entry form
only (until such time as the Company begins issuing certificates evidencing its
Soliciting Dealer Warrants which shall be no later than such time as the Company
begins issuing certificates for its Shares) on a quarterly basis commencing 60
days after the date on which Shares are first sold pursuant to the Offering and
such issuances shall be subject to the terms and conditions set forth in the
Dealer Manager Agreement.
In consideration of the foregoing and for the purpose of defining the terms and
provisions of the Soliciting Dealer Warrants and the respective rights and
obligations thereunder, the Company and the Warrantholder, for value received,
hereby agree as follows:
1. FORM AND TRANSFERABILITY OF SOLICITING DEALER WARRANTS.
(A) REGISTRATION. The Soliciting Dealer Warrant(s) shall be registered on the
books of the Company (and upon issuance of certificates evidencing such
Soliciting Dealer Warrants, shall be numbered) when issued.
(B) FORM OF SOLICITING DEALER WARRANTS. The text and form of the Soliciting
Dealer Warrant and of the Election to Purchase shall be substantially as set
forth in Exhibit A and Exhibit B, respectively, attached hereto and incorporated
herein. The price per Share (the "Warrant Price") and the number of Shares
issuable upon exercise of the Soliciting Dealer Warrants are subject to
adjustment upon the occurrence of certain events, all as hereinafter provided.
The Soliciting Dealer Warrants shall be dated as of the date of signature
thereof by the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
(C) TRANSFER. The Soliciting Dealer Warrants shall be transferable only on the
books of the Company maintained at its principal office or that of its
designated transfer agent, if designated, upon delivery thereof duly endorsed by
the Warrantholder or by its duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. Upon any registration of transfer, the Company shall execute and
deliver a new Soliciting Dealer Warrant to the person entitled thereto.
Assignments or transfers shall be made pursuant to the form of Assignment
attached as Exhibit C hereto.
(D) LIMITATIONS ON TRANSFER OF SOLICITING DEALER WARRANTS. The Soliciting Dealer
Warrants shall not be sold, transferred, assigned, exchanged or hypothecated by
the Warrantholder for a period of one year following the effective date of the
offering of the Company's shares of common stock, except to: (i) one or more
persons, each of whom on the date of transfer is an officer and director or
partner of a Warrantholder or an officer and director or partner of a successor
to a Warrantholder as provided in clause (iv) of this Subsection (D); (ii) a
partnership or partnerships, all of the partners of which are a Warrantholder
and one or more persons, each of whom on the date of transfer is an officer and
director of a Warrantholder or an officer and director or partner of a successor
to a Warrantholder; (iii) broker-dealer firms which have executed, and are not
then in default of, the Selected Dealer Agreements regarding the Offering (the
"Selling Group") and one or more persons, each of whom on the date of transfer
is an officer and director or partner of a member of the Selling Group or an
officer and director or partner of a successor to a member of the Selling Group;
(iv) a successor to a Warrantholder or a successor to a member of the Selling
Group through merger or consolidation; (v) a purchaser of all or substantially
all of a Warrantholder's or Selling Group members' assets; or (vi) by will,
pursuant to the laws of descent and distribution, or by operation of law;
provided, however, that any securities transferred pursuant to clauses (i)
through (vi) of this subsection (D) shall remain subject to the transfer
restrictions specified herein for the remainder of the initially applicable one
year time period. The Soliciting Dealer Warrant may be divided or combined, upon
written request to the Company by the Warrantholder, into a certificate or
certificates representing the right to purchase the same aggregate number of
shares.
Unless the context indicates otherwise, the term "Warrantholder" shall include
any transferee of the Soliciting Dealer Warrant pursuant to this Subsection (D),
and the term "Warrant" shall include any and all Soliciting Dealer Warrants
outstanding pursuant to this Agreement, including those evidenced by a
certificate or certificates issued upon division, exchange, substitution or
transfer pursuant to this Agreement.
(E) EXCHANGE OR ASSIGNMENT OF SOLICITING DEALER WARRANT. Any Soliciting Dealer
Warrant certificate may be exchanged without expense for another certificate or
certificates entitling the Warrantholder to purchase a like aggregate number of
Shares as the certificate or certificates surrendered then entitled such
Warrantholder to purchase. Any Warrantholder desiring to exchange a Soliciting
Dealer Warrant certificate shall make such request in writing delivered to the
Company, and shall surrender, properly endorsed, the certificate evidencing the
Soliciting Dealer Warrant to be so exchanged. Thereupon, the Company shall
execute and deliver to the person entitled thereto a new Soliciting Dealer
Warrant certificate as so requested.
Any Warrantholder desiring to assign a Soliciting Dealer Warrant shall make such
request in writing delivered to the Company, and shall surrender, properly
endorsed, the certificate
-2-
evidencing the Soliciting Dealer Warrant to be so assigned, with an instrument
of assignment duly executed accompanied by proper evidence of assignment,
succession or authority to transfer, and funds sufficient to pay any transfer
tax, whereupon the Company shall, without charge, execute and deliver a new
Soliciting Dealer Warrant certificate in the name of the assignee named in such
instrument of assignment and the original Soliciting Dealer Warrant certificate
shall promptly be cancelled.
2. TERMS AND EXERCISE OF SOLICITING DEALER WARRANTS.
(A) EXERCISE PERIOD. Subject to the terms of this Agreement, the Warrantholder
shall have the right to purchase one Share from the Company at a price of $12.00
(120% of the public offering price per Share) during the time period beginning
one year from the effective date of the Offering and ending on the date five
years after the effective date of the Offering (the "Exercise Period"), or if
any such date is a day on which banking institutions are authorized by law to
close, then on the next succeeding day which shall not be such a day, to
purchase from the Company up to the number of fully paid and nonassessable
Shares which the Warrantholder may at the time be entitled to purchase pursuant
to the Soliciting Dealer Warrant, a form of which is attached hereto as Exhibit
A.
(B) METHOD OF EXERCISE. The Soliciting Dealer Warrant shall be exercised by
surrender to the Company, at its principal office (currently located in Dallas,
Texas) or at the office of the Company's stock transfer agent, if any, or at
such other address as the Company may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the
Company, of the certificate evidencing the Soliciting Dealer Warrant to be
exercised, together with the form of Election to Purchase, included as Exhibit B
hereto, duly completed and signed, and upon payment to the Company of the
Warrant Price (as determined in accordance with the provisions of Sections 7 and
8 hereof), for the number of Shares with respect to which such Soliciting Dealer
Warrant is then exercised together with all taxes applicable upon such exercise.
Payment of the aggregate Warrant Price shall be made in (i) cash or by certified
check or cashier's check, payable to the order of the Company, (ii) surrender of
the portion of the Soliciting Dealer Warrant having an aggregate value based on
the current market price (as defined in Section 9 hereof) as of the date of
exercise, net of the Exercise Price relating thereto, equal to the aggregate
Exercise Price of the Common Stock being purchased (the "Conversion Right"), or
(iii) any combination of the foregoing. A Soliciting Dealer Warrant may not be
exercised unless and until such filings with the Commission (as hereinafter
defined) have been made by the Company, in accordance with Section 11 herein,
necessary for the registration statement pursuant to which the Shares are
registered to meet the current prospectus requirements of the Securities Act of
1933, as amended (the "Securities Act"). A Soliciting Dealer Warrant may not be
exercised if the Shares to be issued upon the exercise of the Soliciting Dealer
Warrant have not been registered (or are exempt from registration) in the state
of residence of the holder of the Soliciting Dealer Warrant or if a Prospectus
(as such term is defined under the Securities Act required under the laws of
such state cannot be delivered to the buyer on behalf of the Company. In
addition, a holder of Soliciting Dealer Warrants may not exercise any Soliciting
Dealer Warrants to the extent such exercise will cause such holder to exceed the
ownership limits set forth in the Company's Articles of Incorporation, as
amended. If any Soliciting Dealer Warrant has not been exercised by the end of
the Exercise Period, it will terminate and the Warrantholder will have no
further rights thereunder.
-3-
(C) PARTIAL EXERCISE. The Soliciting Dealer Warrants shall be exercisable, at
the election of the Warrantholder during the Exercise Period, either in full or
from time to time in part and, in the event that the Soliciting Dealer Warrant
is exercised with respect to less than all of the Shares specified therein at
any time prior to the completion of the Exercise Period, a new certificate
evidencing the remaining Soliciting Dealer Warrants shall be issued by the
Company.
(D) SHARE ISSUANCE UPON EXERCISE. Upon such surrender of the Soliciting Dealer
Warrant certificate and payment of such Warrant Price as aforesaid, the Company
shall issue and cause to be delivered with all reasonable dispatch to the
Warrantholder in such name or names as the Warrantholder may designate in
writing, a certificate or certificates for the number of full Shares so
purchased upon the exercise of the Soliciting Dealer Warrant, together with
cash, as provided in Section 9 hereof, with respect to any fractional Shares
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of such Shares as of the close of
business on the date of the surrender of the Soliciting Dealer Warrant and
payment of the Warrant Price (as hereinafter defined), notwithstanding that the
certificates representing such Shares shall not actually have been delivered or
that the stock transfer books of the Company shall then be closed.
3. MUTILATED OR MISSING SOLICITING DEALER WARRANT.
In case the certificate or certificates evidencing the Soliciting Dealer Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall, at the request
of the Warrantholder, issue and deliver in exchange and substitution for and
upon cancellation of the mutilated certificate of certificates, or in lieu of
and in substitution for the certificate or certificates lost, stolen or
destroyed, a new Soliciting Dealer Warrant certificate or certificates of like
tenor and date and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Soliciting Dealer Warrant, and of reasonable bond of
indemnity, if requested, also satisfactory in form and amount and at the
applicant's cost.
4. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep reserved so
long as the Soliciting Dealer Warrant remains outstanding, out of its authorized
Common Stock, such number of Shares as shall be subject to purchase under the
Soliciting Dealer Warrant.
5. LEGEND ON SOLICITING DEALER WARRANT SHARES.
Each certificate for Shares initially issued upon exercise of the Soliciting
Dealer Warrant, unless at the time of exercise such Shares are registered with
the Securities and Exchange Commission (the "Commission"), under the Securities
Act shall bear the following legend:
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THESE SHARES SHALL BE MADE
EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION
IS NOT REQUIRED.
-4-
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act of the securities represented thereby) shall also bear the above
legend unless, in the opinion of such counsel as shall be reasonably approved by
the Company, the securities represented thereby need no longer be subject to
such restrictions.
6. PAYMENT OF TAXES.
The Company shall pay all documentary stamp taxes, if any, attributable to the
initial issuance of the Shares; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable with respect to any
secondary transfer of the Soliciting Dealer Warrant or the Shares.
7. WARRANT PRICE.
The price per Share at which Shares shall be purchasable on the exercise of the
Soliciting Dealer Warrant shall be $12.00 (the "Warrant Price").
8. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of the
Soliciting Dealer Warrants and the Warrant Price shall be subject to adjustment
from time to time upon the happening of certain events, as follows:
(A) In case the Company shall: (i) pay a dividend in Common Stock or make a
distribution in Common Stock; (ii) subdivide its outstanding Common Stock; (iii)
combine its outstanding Common Stock into a smaller number of shares of Common
Stock; or (iv) issue by reclassification of its Common Stock other securities of
the Company, the number and kind of securities purchasable upon the exercise of
the Soliciting Dealer Warrants immediately prior thereto shall be adjusted so
that the Warrantholder shall be entitled to receive the number and kind of
securities of the Company which it would have owned or would have been entitled
to receive after the happening of any of the events described above had the
Soliciting Dealer Warrant been exercised immediately prior to the happening of
such event or any record date with respect thereto. Any adjustment made pursuant
to this Subsection (A) shall become effective on the effective date of such
event retroactive to the record date, if any, for such event.
(B) No adjustment in the number of securities purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of at
least one percent (1%) in the number of securities (calculated to the nearest
full Share thereof) then purchasable upon the exercise of the Soliciting Dealer
Warrant or, if the Soliciting Dealer Warrant is not then exercisable, the number
of securities purchasable upon the exercise of the Soliciting Dealer Warrant on
the first date thereafter that the Soliciting Dealer Warrant becomes
exercisable; provided, however, that any adjustment which by reason of this
Subsection (B) is not required to be made immediately shall be carried forward
and taken into account in any subsequent adjustment.
(C) Whenever the number of Shares purchasable upon the exercise of the
Soliciting Dealer Warrant is adjusted as herein provided, the Warrant Price
shall be adjusted by multiplying such Warrant Price immediately prior to such
adjustment by a fraction, of which the numerator shall
-5-
be the number of Shares purchasable upon the exercise of the Soliciting Dealer
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of Shares so purchasable immediately thereafter.
(D) For the purpose of this Section 8, the term "Common Stock" shall mean: (i)
the class of stock designated as the Common Stock of the Company at the date of
this Agreement; or (ii) any other class of stock resulting from successive
changes or reclassification 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
this Section 8, the Warrantholder shall become entitled to purchase any shares
of the Company other than Common Stock, thereafter the number of such other
shares so purchasable upon the exercise of the Soliciting Dealer Warrant and the
Warrant Price 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 Shares contained in this Section 8.
(E) Whenever the number of Shares and/or securities purchasable upon the
exercise of the Soliciting Dealer Warrant or the Warrant Price is adjusted as
herein provided, the Company shall cause to be promptly mailed to the
Warrantholder by first class mail, postage prepaid, notice of such adjustment
setting forth the number of Shares and/or securities purchasable upon the
exercise of the Soliciting Dealer Warrant or the Warrant Price after such
adjustment, a brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made.
(F) In case of any reclassification, capital reclassification, capital
reorganization or other change in the outstanding shares of Common Stock of the
Company (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of an issuance of Common Stock by
way of dividend or other distribution, or of a subdivision or combination of the
Common Stock), or in case of any consolidation or merger of the Company with or
into another corporation or entity (other than a merger with a subsidiary in
which merger the Company is the continuing corporation and which does not result
in any reclassification, capital reorganization or other change in the
outstanding shares of Common Stock of the Company) as a result of which the
holders of the Company's Common Stock become holders of other shares of
securities of the Company or of another corporation or entity, or such holders
receive cash or other assets, or in case of any sale or conveyance to another
corporation of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrantholder an
agreement that the Warrantholder shall have the right thereafter upon payment
for the Warrant Price in effect immediately prior to such action to purchase
upon the exercise of the Soliciting Dealer Warrant the kind and number of
securities and property which it would have owned or have been entitled to have
received after the happening of such reclassification, capital reorganization,
change in the outstanding shares of shares of Common Stock of the Company,
consolidation, merger, sale or conveyance had the Soliciting Dealer Warrant been
exercised immediately prior to such action.
The agreement referred to in this Subsection (F) shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 8. The provisions of this Subsection (F) shall
similarly apply to successive reclassification, capital
-6-
reorganizations, changes in the outstanding shares of Common Stock of the
Company, consolidations, mergers, sales or conveyances.
(G) Except as provided in this Section 8, no adjustment with respect to any
dividends shall be made during the term of the Soliciting Dealer Warrant or upon
the exercise of the Soliciting Dealer Warrant.
(H) No adjustments shall be made in connection with the public or other sale and
issuance of the Shares pursuant to the Dealer Manager Agreement or the sale or
issuance of Shares upon the exercise of the Soliciting Dealer Warrant or other
warrants, options or other rights to purchase Shares.
(I) Irrespective of any adjustments in the Warrant Price or the number or kind
of securities purchasable upon the exercise of the Soliciting Dealer Warrant,
the Soliciting Dealer Warrant certificate or certificates theretofore or
thereafter issued may continue to express the same price or number or kind of
securities stated in the Soliciting Dealer Warrant initially issuable pursuant
to this Agreement.
9. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractional Shares or securities upon
the exercise of the Soliciting Dealer Warrants. If any such fractional Share
would, except for the provisions of this Section 9, be issuable upon the
exercise of the Soliciting Dealer Warrants (or specified portion thereof), the
Company may, at its election, pay an amount in cash equal to the then current
market price multiplied by such fraction. For purposes of this Agreement, the
term "current market price" shall mean: (a) if the Shares are traded in the
over-the-counter market and not on the NASDAQ National Market ("NNM") or on any
national securities exchange, the average between the per share closing bid and
asked prices of the Shares for the 30 consecutive trading days immediately
preceding the date in question, as reported by the NNM or an equivalent
generally accepted reporting service; or (b) if the Shares are traded on the NNM
or on a national securities exchange, the average for the 30 consecutive trading
days immediately preceding the date in question of the daily per share closing
prices of the Shares on the NNM or on the principal national stock exchange on
which it is listed, as the case may be. The closing price referred to in clause
(b) above shall be the last reported sales price or, in case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices on the NNM or on the principal national securities exchange on which the
Shares are then listed, as the case may be. If the Shares are not publicly
traded, then the "current market price" shall mean $10 for the first three years
following the termination of the Offering and thereafter, such amount as is
determined in good faith by the Company's Board of Directors to be the fair
market value of a Share.
10. NO RIGHTS AS STOCKHOLDER; NOTICES OF WARRANTHOLDER.
Nothing contained in this Agreement or in the Soliciting Dealer Warrant shall be
construed as conferring upon the Warrantholder or its transferee any rights as a
stockholder of the Company, either at law or in equity, including the right to
vote, receive dividends, consent or notices as a stockholder with respect to any
meeting of stockholders for the election of directors of the Company or for any
other matter.
-7-
11. REGISTRATION OF SOLICITING DEALER WARRANTS AND SHARES PURCHASABLE
THEREUNDER.
The Shares purchasable under the Soliciting Dealer Warrants are being registered
as part of the Offering. The Company undertakes to make additional filings with
the Commission to the extent required to keep the Shares registered through the
Exercise Period; provided, however, that no such filings shall be required
during the period in which the Commission in relevant no-action letters for
comparable offerings takes the position that no enforcement action will be taken
for the failure to make any such filing.
12. INDEMNIFICATION.
In the event of the filing of any registration statement with respect to the
Soliciting Dealer Warrants or the Shares pursuant to Section 11 above, the
Company and the Warrantholder (and/or selling Warrantholder or such holder of
Shares, as the case may be), shall agree to indemnify and hold harmless the
other to the same extent and in the same manner as provided in the Dealer
Manager Agreement.
13. CONTRIBUTION.
In order to provide for just and equitable contribution under the Securities Act
in any case in which: (a) the Warrantholder or any holder of Shares makes a
claim for indemnification pursuant to Section 12 hereof, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right to appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 12 hereof
provide for indemnification in such case; or (b) contribution under the
Securities Act may be required on the part of the Warrantholder or any holder of
Shares, the Company and the Warrantholder, or such holder of Shares, shall agree
to contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (which shall, for all purposes of this Agreement, including,
but not limited to, all costs of defense and investigation and all attorneys'
fees), in either such case (after contribution from others) on the basis of
relative fault as well as any other relevant equitable considerations in the
same manner as provided by the parties in the Dealer Manager Agreement.
14. NOTICES.
Any notice given pursuant to this Agreement by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, return receipt requested:
(a) If to the Warrantholder, addressed to:
Behringer Securities LP
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Operating Officer and Chief Legal Officer
-8-
(b) If to the Company, addressed to:
Behringer Harvard REIT I, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Operating Officer and Chief Legal Officer
Each party hereto may, from time to time, change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
15. PARTIES IN INTEREST.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrantholder and, to the extent
expressed, any holder of Shares, any person controlling the Company or the
Warrantholder or any holder of Shares, directors of the Company, nominees for
directors (if any) named in the prospectus for the Offering, or officers of the
Company who have signed the registration statement, any legal or equitable
right, remedy or claim under this Agreement, and this Agreement shall be for the
sole an exclusive benefit of the aforementioned parties.
16. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit of the
parties listed in Section 15 above shall bind and inure to the benefit of their
respective executors, administrators, successors and assigns hereunder;
provided, however, that the rights of the Warrantholder or holder of Shares
shall be assignable only to those persons and entities specified in Section 1,
Subsection (D) thereof, in which event such assignee shall be bound by each of
the terms and conditions of this Agreement.
17. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall not merge or consolidate with or into any other corporation or
sell all or substantially all of its property to another corporation, unless it
complies with the provisions of Section 8, Subsection (F) thereof.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All statements contained in any schedule, exhibit, certificate or other
instrument delivered by or on behalf of the parties hereto, or in connection
with the transactions contemplated by this Agreement, shall be deemed to be
representations and warranties hereunder. Notwithstanding any investigations
made by or on behalf of the parties to this Agreement, all representations,
warranties and agreements made by the parties to this Agreement or pursuant
hereto shall survive.
-9-
19. CHOICE OF LAW.
This Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Texas, including all
matters of construction, validity, performance and enforcement, and without
giving effect to the principles of conflict of laws; provided, however, that
causes of action for violations of federal or state securities laws shall not be
governed by this Section.
20. JURISDICTION.
The parties submit to the exclusive jurisdiction of the Courts of the State of
Texas or a Federal Court impaneled in the State of Texas for the resolution of
all legal disputes arising under the terms of this Agreement.
21. ENTIRE AGREEMENT.
Except as provided herein, this Agreement, including exhibits, contains the
entire agreement of the parties, and supersedes all existing negotiations,
representations or agreements and all other oral, written or other
communications between them concerning the subject matter of this Agreement.
22. SEVERABILITY.
If any provision of this Agreement is unenforceable, invalid or violates
applicable law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Agreement.
23. CAPTIONS.
The captions in this Agreement are inserted only as a matter of convenience and
for reference and shall not be deemed to define, limit, enlarge or describe the
scope of this Agreement or the relationship of the parties, and shall not affect
this Agreement or the construction of any provisions herein.
24. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which shall together constitute one and the
same instrument.
-10-
IN WITNESS WHEREOF, the parties have caused this Warrant Purchase Agreement to
be duly executed as of ______________, 2002.
BEHRINGER SECURITIES LP
By: Harvard Property Trust, LLC
General Partner
By:
-----------------------------------
Xxxxxx X. Xxxxxxx, III
Chief Operating Officer
BEHRINGER HARVARD REIT I, INC.
By:
-----------------------------------
Xxxxxx X. Xxxxxxxxx
President
-11-
EXHIBIT A
BEHRINGER HARVARD REIT I, INC.
SOLICITING DEALER WARRANT NO. ____
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE SHARES
PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED. TRANSFER OF THIS
WARRANT IS ALSO RESTRICTED BY THAT CERTAIN WARRANT PURCHASE AGREEMENT DATED AS
OF __________, 2002, A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
BEHRINGER HARVARD REIT I, INC.
Exercisable commencing on __________, 200_ Void after 5:00 P.M. Eastern Standard
Time on __________, 200_ (the "Exercise Closing Date").
THIS CERTIFIES that, for value received, _____________________ (the
"Warrantholder"), or registered assign, is entitled, subject to the terms and
conditions set forth in this Warrant (the "Warrant"), to purchase from Behringer
Harvard REIT I, Inc., a Maryland corporation (the "Company" and the "Issuer"),
such number of fully paid and nonassessable Shares of common stock of the
Company (the "Shares") as is reflected on the books of the Company at any time
during the period commencing on __________, 200__ and continuing up to 5:00 P.M.
eastern standard time on __________, 200__, at $12.00 per Share, and is subject
to all the terms thereof, including the limitations on transferability as set
forth in that certain Warrant Purchase Agreement between Behringer Securities LP
and the Company dated __________, 2002.
THIS WARRANT may be exercised by the holder thereof, in whole or in part, by the
presentation and surrender of this Warrant with the form of Election to Purchase
duly executed, with signature(s) guaranteed, at the principal office of the
Company (or at such other address as the Company may designate by notice to the
holder hereof at the address of such holder appearing on the books of the
Company), and upon payment to the Company of the purchase price in cash or by
certified check or bank cashier's check. The Shares so purchased shall be deemed
to be issued to the holder hereof as the record owner of such Shares as of the
close of business on the date on which this Warrant shall have been surrendered
and payment made for such Shares. The Shares so purchased shall be registered to
the holder (and, if requested, certificates issued) promptly after this Warrant
shall have been so exercised and unless this Warrant has expired or has been
exercised, in full, a new Warrant identical in form, but representing the number
of Shares with respect to which this Warrant shall not have been exercised,
shall also be issued to the holder hereof.
-12-
NOTHING CONTAINED herein shall be construed to confer upon the holder of this
Warrant, as such, any of the rights as a Stockholder of the Company.
BEHRINGER HARVARD REIT I, INC.
By:
----------------------------------
Xxxxxx X. Xxxxxxx, III
Chief Operating Officer
-13-
EXHIBIT B
BEHRINGER HARVARD REIT I, INC.
ELECTION TO PURCHASE
SOLICITING DEALER WARRANT
Behringer Harvard REIT I, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Soliciting Dealer Warrant (the "Warrant") to
purchase thereunder _______ shares of the common stock of Behringer Harvard REIT
I, Inc. (the "Shares") pursuant to the terms and provisions of the attached
Warrant and hereby tenders the following in payment of the actual exercise price
thereof (the "Warrant Price"):
- $______________ ($12.00 per Share); or
- elects to exercise its Conversion Right pursuant to Section 2(B)(ii)
of the attached Warrant with respect to the number of shares of
common stock having a current market price aggregating the Warrant
Price in full; or
- elects to exercise its Conversion Right pursuant to Section 2(B)(ii)
of the attached Warrant with respect to the number of shares of
common stock having a current market price aggregating
$_____________ and tenders herewith the remaining $___________ of
the Warrant Price in cash.
The undersigned hereby requests that the Shares be issued in the name of:
(Please Print Name, Address and SSN or TIN of Stockholder below)
____________________________________________________
____________________________________________________
____________________________________________________
and, if said number of Shares shall not be the total possible number of Shares
purchasable pursuant to the attached Warrant, that a new Warrant certificate for
the balance of the Shares purchasable under the attached Warrant certificate be
registered in the name of the undersigned Warrantholder or his assignee as
indicated below and delivered at the address stated below:
Dated:_____________________, 200___
Name of Warrantholder or Assignee: _____________________________________________
(Please Print)
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
-14-
EXHIBIT C
BEHRINGER HARVARD REIT I, INC.
SOLICITING DEALER WARRANT
ASSIGNMENT
(To be signed only upon assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, transfers and conveys
unto:___________________________________________________________________________
(Name, Address and SSN or TIN of Assignee Below)
the attached Soliciting Dealer Warrant No. ____ (the "Warrant"), to purchase
Shares of common stock of Behringer Harvard REIT I, Inc. (the "Company"), hereby
irrevocably constituting and appointing the Company and/or its transfer agent as
its attorney to transfer said Warrant on the books of the Company, with full
power of substitution.
Dated:________________, 200__
Signature of Registered Holder: ________________________________________________
Name of Registered Holder - Please Print: ______________________________________
Signature Guaranteed: __________________________________________________________
Note: The above signature must correspond
with the name as written upon the face of
the attached Warrant certificate in every
particular respect, without alteration,
enlargement or any change whatever, unless
this Warrant has previously been duly
assigned.
-15-
