EXHIBIT 3
CAPITAL TRUST, INC.
Warrant for Class A Common Stock
FOR VALUE RECEIVED, Capital Trust, Inc., a Maryland corporation (the
"Company"), hereby grants, pursuant hereto (this "Warrant"), to Admiral
Insurance Company (the "Initial Holder") or its permitted assigns, the right,
subject to the terms and conditions contained herein, to purchase from the
Company, at any time or from time to time commencing at the Commencement Time
(as defined below) and prior to 5:00 p.m., Eastern Time, on December 31, 2004,
up to NINETY ONE THOUSAND TWO HUNDRED AND FIFTY (91,250) (subject to adjustment
as provided herein) fully paid and non-assessable shares of class A common
stock, par value $.01 per share, of the Company for twenty-three dollars and
forty cents ($23.40) per share (subject to adjustment as provided herein) for an
aggregate purchase price (assuming full exercise) of TWO MILLION ONE HUNDRED
THIRTY FIVE THOUSAND AND TWO HUNDRED FIFTY DOLLARS ($2,135,250). The Aggregate
Exercise Price is not subject to adjustment.
Hereinafter, (i) said class A common stock, par value $.01 per
share, of the Company, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares purchasable hereunder is
referred to as the "Aggregate Exercise Price," (iv) the price payable for each
of the Warrant Shares is referred to as the "Per-Share Exercise Price," (v) this
Warrant, and all warrants hereafter issued in exchange for, in substitution for
or upon transfer of this Warrant are referred to as the "Warrants" and (vi) the
holders of this Warrant or any portion hereof in accordance with the terms
hereof from time to time are each referred to as a "Holder" and are collectively
referred to as the "Holders.") Definitions of other capitalized terms used
herein are set forth in Section 15 hereof.
1. Exercise of Warrant.
(a) This Warrant may be exercised in whole at any time, or in part
from time to time, commencing at the Commencement Time and prior to 5:00 p.m.,
Eastern Time, on December 31, 2004 (the "Exercise Period") by the Holder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) to the Company at the address set forth in Section 11 hereof, together
with proper payment
of the Aggregate Exercise Price, or the proportionate part thereof if this
Warrant is exercised in part, with payment for the Warrant Shares made by wire
transfer of immediately available funds or certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, it
must be exercised for a number of whole shares of Common Stock.
(b) The "Commencement Time" shall begin when the issuance of the
Warrant Shares shall have been approved by an affirmative vote of a majority of
the votes cast at the Company's 2004 annual meeting of shareholders or at any
adjournment or postponement thereof in accordance with Sections 310.00 and
312.03(c) of the New York Stock Exchange, Inc. Listed Company Manual.
(c) After any partial exercise or exchange, the Holder will be
entitled to receive a new Warrant covering the Warrant Shares as to which this
Warrant has not been exercised or exchanged and setting forth the proportionate
part of the Aggregate Exercise Price applicable to such Warrant Shares.
(d) As soon as practicable, but within ten (10) days following the
surrender of this Warrant and the receipt of payment of the Aggregate Exercise
Price, or the proportionate part thereof, as the case may be, pursuant to
subsection (a) of this Section 1, the Company, within seven (7) days,
(i) will issue a certificate or certificates in the name of
the Holder or such other Person designated in writing by the Holder for the
largest number of whole shares of Common Stock to which the Holder shall be
entitled by the exercise (full or partial, in accordance with the subscription
form) or exchange of this Warrant;
(ii) will, if this Warrant is exercised in whole, in lieu of
any fractional share of Common Stock to which the Holder shall be otherwise
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
shall determine), and
(iii) will deliver the other securities and properties
receivable upon the exercise or exchange of this Warrant, or the proportionate
part thereof if this Warrant is exercised or exchanged in part, pursuant to the
provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of 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. Throughout the period of time
during which this Warrant may be exercised, the Company shall use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on the New York Stock Exchange or on any other successor national
securities exchange or other relevant market on which the Common Stock is
listed, admitted to trading or traded.
3. Protection Against Dilution. The Per-Share Exercise Price and the
number of Warrant Shares purchasable upon the exercise of the Warrants shall be
subject to adjustment from time to time as set forth in this Section 3. Whenever
the Per-Share Exercise Price is adjusted by operation of this Section 3, the
number of Warrant Shares to be delivered upon exercise of the Warrants shall be
adjusted as provided in subsection (n) of this Section 3.
(a) In case the Company shall, while any of the Warrants are
outstanding, (i) pay a dividend or make any other distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of stock of the Company (other than the reclassifications covered by
subsection (d) of this Section 3), the Per-Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which shall be the
Aggregate Exercise Price and the denominator of which shall be the number of
shares of Common Stock or other stock of the Company that the Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto or, in the case of a dividend, distribution,
subdivision, combination or reclassification with respect to which a record date
has been established, prior to such record date. An adjustment made pursuant to
this subsection (a) shall be made immediately prior to the opening of business
on the day following (x) the date of the payment of the dividend or distribution
(retroactive to the record date) or (y) the effective date in the case of a
subdivision, combination or reclassification (retroactive to the record date, if
any). If the Board of Directors shall declare any dividend or distribution or
resolve to take any action referred to in this subsection (a), it shall provide
written notice thereof to the Holder not less than ten (10) days prior to the
record date fixed for determining the stockholders entitled to participate
therein.
(b) In case the Company shall, while any of the Warrants are
outstanding, issue rights or warrants to purchase, or securities convertible
into or exchangeable for, Common Stock ("Rights") to any holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for, purchase,
convert or exchange shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subsection (e) of this Section 3) on the record date mentioned below, provided
the purchase price is less than the Per-Share Exercise Price theretofore in
effect, the Per-Share Exercise Price shall be adjusted so that the same shall
equal the amount determined by multiplying the Per-Share Exercise Price
theretofore in effect by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding on the date of issuance of such Rights
plus the number of shares which the aggregate offering price would purchase at
such current market price, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such Rights plus
the number of additional shares of Common Stock offered for subscription or
purchase. "Aggregate offering price," as used in the preceding
sentence, shall mean the amount received or receivable by the Company in
consideration of the issuance or sale of Rights plus any additional
consideration payable to the Company upon exercise thereof, in each case with
reference to the total number of shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made immediately prior to the opening of
business on the day following the date of issuance of Rights, retroactive to the
record date for the determination of stockholders entitled to receive Rights.
(c) In case the Company shall, by dividend or otherwise,
distribute to any holders of its outstanding shares of Common Stock, evidences
of its indebtedness, shares of any class or series of its stock, assets,
securities convertible into or exchangeable for any of its stock or rights or
warrants to subscribe for or purchase any of its securities (excluding any
Rights referred to in subsection (b) of this Section 3, any dividend or other
distribution paid exclusively in cash and any dividend or other distribution
referred to in subsection (a) of this Section 3), the Per-Share Exercise Price
shall be reduced so that the same shall equal the price determined by
multiplying the Per-Share Exercise Price theretofore in effect by a fraction the
numerator of which shall be the current market price (determined as provided in
subsection (e) of this Section 3) per share of Common Stock on the record date
referred to below less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive), on the record date
referred to below, of the portion of the evidences of indebtedness, shares of
stock, assets, convertible or exchangeable securities, rights or warrants
(including fractions) so distributed with respect to each share of Common Stock
and the denominator of which shall be such current market price per share of
Common Stock. Such adjustment shall be made immediately prior to the opening of
business on the day following the date on which any such distribution is made,
retroactive to the record date for the determination of stockholders entitled to
receive such distribution. In the event that no such dividend or other
distribution is so paid or made, the Per-Share Exercise Price shall again be
adjusted to be the Per-Share Exercise Price which would then be in effect if
such dividend or other distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when-issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share of Common Stock (determined as provided in subsection (e) of this
Section 3).
(d) In the case of any capital reorganization of the Company or
reclassification of the Common Stock, or any consolidation or merger to which
the Company is a party other than a merger or consolidation in which the Company
is the continuing corporation, or in the case of any sale or conveyance to
another entity of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the Holder shall have the right thereafter
to receive on the exercise of this Warrant the kind and
amount of securities, cash or other property which the Holder would have owned
or have been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrant. Notice of any such reorganization, reclassification, consolidation,
merger, exchange, sale or conveyance shall be mailed to the Holder not less than
ten (10) days prior to such event. The above provisions of this subsection (d)
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of the Warrant to be responsible for all
of the agreements and obligations of the Company hereunder.
(e) For the purpose of any computation under subsection (b) or (c)
of this Section 3, the current market price per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five (5) Trading Day period ending on the earlier of the day in question
and, if applicable, the last Trading Day before the "ex" date with respect to
the issuance or distribution requiring such computation; provided, however, that
if more than one event occurs that would require an adjustment pursuant to
subsections (a) through (d) of this Section 3, inclusive, the Board of Directors
shall in good faith make such adjustments to the Closing Prices during such five
(5) Trading Day period as it reasonably deems appropriate to effectuate the
intent of the adjustment provisions in this Section 3, in which case any such
determination by the Board of Directors shall be conclusive. For purposes of
this paragraph, the term "ex" date means the first date on which the shares of
Common Stock trade regular way, without the right to receive such issuance or
distribution, on the New York Stock Exchange or on such successor securities
exchange as the shares of Common Stock may be listed on or in the relevant
market from which the Closing Prices were obtained.
(f) No adjustment in the Per-Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Per-Share Exercise Price; provided, however, that any
adjustments which by reason of this subsection (f) are not required to be made
shall be carried forward and taken into account in determining whether any
subsequent adjustment shall be required.
(g) If any action would require adjustment of the Per-Share
Exercise Price pursuant to more than one of the provisions described above, only
one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder.
(h) Except as stated above, the Per-Share Exercise Price will not
be adjusted for the issuance of shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(i) In case the Company shall, by dividend or otherwise, declare
or make a distribution on the shares of Common Stock referred to in subsection
(c) of this Section 3, the Holder, upon the exercise thereof subsequent to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the effectiveness of the
Per-Share Exercise Price adjustment in respect of such distribution, shall be
entitled to receive, for each share of Common Stock for which the Warrant is
exercised, the portion of the evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities (including
fractions) so distributed with respect to each share of Common Stock; provided,
however, that, at the election of the Company with respect to all Holders so
exercising, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive). If any exercise of a Warrant described in the immediately preceding
sentence occurs prior to the payment date for a distribution to holders of
shares of Common Stock which the Holder of a Warrant so exercised is entitled to
receive in accordance with the immediately preceding sentence, the Company may
elect to distribute to such Holder a due bill for the evidences of indebtedness,
shares of stock, assets, securities convertible into or exchangeable for any of
its stock, or rights or warrants to subscribe for or purchase any of its
securities to which such Holder is so entitled, provided, that such due bill (a)
meets any applicable requirements of the principal national securities exchange
or other market on which the shares of Common Stock are then traded and (b)
requires payment or delivery of such evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
(j) Whenever the Per-Share Exercise Price is adjusted as provided
in this Section 3 and upon any modification of the rights of the Holder in
accordance with this Section 3, the Company shall promptly prepare a certificate
signed by the chief executive officer or the chief financial officer setting
forth the adjusted Per-Share Exercise Price and showing in reasonable detail the
facts requiring such adjustment or modification and the manner of computing the
same ("Adjustment Certificate") and cause copies of such certificate to be
mailed to the Holder.
(k) If the Board of Directors shall authorize and the Company
shall declare any dividend or other distribution with respect to the Common
Stock other than a distribution exclusively in cash, the Company shall mail
notice thereof to the Holder not less than ten (10) days prior to the record
date fixed for determining stockholders entitled to participate in such dividend
or other distribution.
(l) If, as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of stock or other securities,
the Board of Directors shall in good faith determine the allocation of the
adjusted Per-Share Exercise Price between or among such classes of stock or
other securities (whose determination shall be conclusive).
(m) Upon the expiration of any rights, options, warrants or
conversion privileges with respect to the issuance of which an adjustment to the
Per-Share Exercise Price had been made, if such shall not have been exercised,
the Per-Share Exercise Price, to the extent this Warrant has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) such shares of
Common Stock, if any, that were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Per-Share Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion privileges.
(n) Whenever the Per-Share Exercise Price is adjusted as provided
pursuant to this Section 3, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be adjusted by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, the numerator of
which shall be the Per-Share Exercise Price immediately prior to such
adjustment, and the denominator of which shall be the Per-Share Exercise Price
immediately thereafter.
(o) In case any event shall occur as to which the other provisions
of this Section 3 are not strictly applicable but as to which the failure to
make any adjustment would not fairly protect the purchase rights represented by
this Warrant in accordance with the essential intent and principles hereof then,
in each such case, the Board of Directors shall in good faith determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants (whose determination shall be conclusive) and shall
promptly make the adjustments described therein.
(p) If the Company shall take a record of the holders of its
Common Stock for any purpose requiring an adjustment hereunder, but shall,
thereafter and before the consummation of the event requiring such adjustment
legally abandon its plan, then thereafter no adjustment shall be required by
reason of the taking of such record and any such adjustment previously made in
respect thereof shall be rescinded and annulled.
(q) Notwithstanding anything herein to the contrary, no adjustment
to the Per-Share Exercise Price hereunder shall be made, to the extent it would
cause the Per-Share Exercise Price to be less than the par value of the Common
Stock.
4. Fully Paid Stock; Taxes. The shares of the Common Stock represented
by each and every certificate for Warrant Shares delivered upon the exercise of
this Warrant shall at the time of such delivery, be duly authorized, validly
issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights or rights of first refusal. The Company shall pay all
documentary, stamp or similar taxes and other similar governmental charges that
may be imposed with respect to the issuance or delivery of any shares of Common
Stock upon exercise of the Warrants (other than income taxes); provided,
however, that if the shares of Common Stock are to be delivered in a name other
than the name of the Holder, no such delivery shall be made unless the Person
requesting the same has paid to the Company the amount of transfer taxes or
charges incident thereto, if any.
5. HSR. To the extent required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the "HSR Act") following any exercise or exchange of
this Warrant pursuant to Section 1 by the Holder and prior to the issuance and
delivery of the certificates for the shares of Common Stock required thereby,
the Company and the Holder shall cooperate in the preparation of, and file with
the United States Federal Trade Commission and the United States Department of
Justice, the notification and report form required for such and any supplemental
or additional information which may be reasonably requested in connection
therewith pursuant to the HSR Act and shall comply in all material respects with
the requirements of the HSR Act. The fees to be paid in connection with any such
filing under the HSR Act shall be paid by the Holder.
6. Transfer; Etc.
(a) This Warrant may not be transferred without the consent of the
Company; provided, however, that that the Initial Holder may assign all or any
portion of this Warrant to one or more designated controlled Affiliates of X. X.
Xxxxxxx Corporation, a Delaware corporation, by execution of the form of
assignment attached hereto or a substantially equivalent assignment form. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder of this Warrant as he or it appears on the Company's books
at any time as the Holder for all purposes. The Company shall permit any Holder
of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(b) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the
Securities Act of 1933 and the applicable state securities "blue sky" laws, and
is so transferable only upon the books of the Company which it shall cause to be
maintained for such purpose.
(c) All Warrants issued upon the transfer or assignment of this
Warrant or part thereof or upon a partial exercise, exchange or purchase of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
(d) The Company shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the issue of any
certificates for Warrants in a name other than that of the registered Holder of
a Warrant surrendered upon the exercise or transfer of a Warrant and the Company
shall not be required to issue or deliver such certificates for Warrants unless
and until the Person or Persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or are not due and
owing.
(e) In connection with any transfer, the Holder will deliver to
the Company such certificates and other information as the Company may
reasonably require to confirm that the transfer complies with the foregoing
restrictions.
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Stockholder. This Warrant does not confer upon
the Holder any right to vote on, consent to or otherwise participate with
respect to matters to a vote of the stockholders of the Company or to receive
notice as a stockholder of the Company, as such, in respect of any matters
whatsoever, nor any other rights or liabilities as a stockholder, prior to the
exercise hereof; this Warrant does, however, require certain notices to the
Holder as set forth herein.
9. Communication. Any notice or other communication to be given
hereunder shall be given by hand delivery, by overnight carrier, in each case at
the addresses set forth in this section, and shall be deemed to have been given
when received. The Company or the Holder may change its address for receiving
notices by giving written notice of such change to the other.
If to the Company, to:
Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to the Holder, to:
Admiral Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.
12. Amendment, Waiver, etc. Except as expressly provided herein, neither
this Warrant nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the majority in
interest of the Holders.
13. Certain Definitions.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control", when used with
respect to any Person, means possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated", "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Company.
"Closing Price", with respect to any security on any day, means the
last reported sale price, regular way on such day, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Tape, or, if such
security is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities
exchange on which such security is listed or admitted to trading, or, if such
security is not listed or admitted to trading on a national securities exchange,
on the NASDAQ Stock Market of the National Association of Securities Dealers,
Inc., or, if such security is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which such security is
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
(or any committee duly authorized by the Board of Directors) for that purpose
or, if not so available in such manner, as otherwise determined in good faith by
the Board of Directors (or any committee duly authorized by the Board of
Directors).
"Initial Holder" means X. X. Xxxxxxx Corporation, a Delaware
corporation, and/or one or more of its designated Affiliates to whom it
transfers Warrants.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Trading Day" means a day on which any securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this 11th day of May, 2004.
CAPITAL TRUST, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
SUBSCRIPTION
The undersigned, ___________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
Capital Trust, Inc. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated:_______________ Signature:___________________________
Address:_____________________________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of
Capital Trust, Inc.
Dated:_______________ Signature:___________________________
Address:_____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and transfers unto
____________________ the right to purchase _______ shares of Common Stock, par
value $.01 per share, of Capital Trust, Inc. covered by the foregoing Warrant,
and a proportionate part of said Warrant and the rights evidenced thereby, and
does irrevocably constitute and appoint ____________________, attorney, to
transfer such part of said Warrant on the books of Capital Trust, Inc.
Dated:_______________ Signature:___________________________
Address:_____________________________
CAPITAL TRUST, INC.
Warrant for Class A Common Stock
FOR VALUE RECEIVED, Capital Trust, Inc., a Maryland corporation (the
"Company"), hereby grants, pursuant hereto (this "Warrant"), to Berkley
Insurance Company (the "Initial Holder") or its permitted assigns, the right,
subject to the terms and conditions contained herein, to purchase from the
Company, at any time or from time to time commencing at the Commencement Time
(as defined below) and prior to 5:00 p.m., Eastern Time, on December 31, 2004,
up to NINETY ONE THOUSAND TWO HUNDRED AND FIFTY (91,250) (subject to adjustment
as provided herein) fully paid and non-assessable shares of class A common
stock, par value $.01 per share, of the Company for twenty-three dollars and
forty cents ($23.40) per share (subject to adjustment as provided herein) for an
aggregate purchase price (assuming full exercise) of TWO MILLION ONE HUNDRED
THIRTY FIVE THOUSAND AND TWO HUNDRED FIFTY DOLLARS ($2,135,250). The Aggregate
Exercise Price is not subject to adjustment.
Hereinafter, (i) said class A common stock, par value $.01 per
share, of the Company, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares purchasable hereunder is
referred to as the "Aggregate Exercise Price," (iv) the price payable for each
of the Warrant Shares is referred to as the "Per-Share Exercise Price," (v) this
Warrant, and all warrants hereafter issued in exchange for, in substitution for
or upon transfer of this Warrant are referred to as the "Warrants" and (vi) the
holders of this Warrant or any portion hereof in accordance with the terms
hereof from time to time are each referred to as a "Holder" and are collectively
referred to as the "Holders.") Definitions of other capitalized terms used
herein are set forth in Section 15 hereof.
1. Exercise of Warrant.
(a) This Warrant may be exercised in whole at any time, or in part
from time to time, commencing at the Commencement Time and prior to 5:00 p.m.,
Eastern Time, on December 31, 2004 (the "Exercise Period") by the Holder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) to the Company at the address set forth in Section 11 hereof, together
with proper payment
of the Aggregate Exercise Price, or the proportionate part thereof if this
Warrant is exercised in part, with payment for the Warrant Shares made by wire
transfer of immediately available funds or certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, it
must be exercised for a number of whole shares of Common Stock.
(b) The "Commencement Time" shall begin when the issuance of the
Warrant Shares shall have been approved by an affirmative vote of a majority of
the votes cast at the Company's 2004 annual meeting of shareholders or at any
adjournment or postponement thereof in accordance with Sections 310.00 and
312.03(c) of the New York Stock Exchange, Inc. Listed Company Manual.
(c) After any partial exercise or exchange, the Holder will be
entitled to receive a new Warrant covering the Warrant Shares as to which this
Warrant has not been exercised or exchanged and setting forth the proportionate
part of the Aggregate Exercise Price applicable to such Warrant Shares.
(d) As soon as practicable, but within ten (10) days following the
surrender of this Warrant and the receipt of payment of the Aggregate Exercise
Price, or the proportionate part thereof, as the case may be, pursuant to
subsection (a) of this Section 1, the Company, within seven (7) days,
(i) will issue a certificate or certificates in the name of
the Holder or such other Person designated in writing by the Holder for the
largest number of whole shares of Common Stock to which the Holder shall be
entitled by the exercise (full or partial, in accordance with the subscription
form) or exchange of this Warrant;
(ii) will, if this Warrant is exercised in whole, in lieu of
any fractional share of Common Stock to which the Holder shall be otherwise
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
shall determine), and
(iii) will deliver the other securities and properties
receivable upon the exercise or exchange of this Warrant, or the proportionate
part thereof if this Warrant is exercised or exchanged in part, pursuant to the
provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of 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. Throughout the period of time
during which this Warrant may be exercised, the Company shall use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on the New York Stock Exchange or on any other successor national
securities exchange or other relevant market on which the Common Stock is
listed, admitted to trading or traded.
3. Protection Against Dilution. The Per-Share Exercise Price and the
number of Warrant Shares purchasable upon the exercise of the Warrants shall be
subject to adjustment from time to time as set forth in this Section 3. Whenever
the Per-Share Exercise Price is adjusted by operation of this Section 3, the
number of Warrant Shares to be delivered upon exercise of the Warrants shall be
adjusted as provided in subsection (n) of this Section 3.
(a) In case the Company shall, while any of the Warrants are
outstanding, (i) pay a dividend or make any other distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of stock of the Company (other than the reclassifications covered by
subsection (d) of this Section 3), the Per-Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which shall be the
Aggregate Exercise Price and the denominator of which shall be the number of
shares of Common Stock or other stock of the Company that the Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto or, in the case of a dividend, distribution,
subdivision, combination or reclassification with respect to which a record date
has been established, prior to such record date. An adjustment made pursuant to
this subsection (a) shall be made immediately prior to the opening of business
on the day following (x) the date of the payment of the dividend or distribution
(retroactive to the record date) or (y) the effective date in the case of a
subdivision, combination or reclassification (retroactive to the record date, if
any). If the Board of Directors shall declare any dividend or distribution or
resolve to take any action referred to in this subsection (a), it shall provide
written notice thereof to the Holder not less than ten (10) days prior to the
record date fixed for determining the stockholders entitled to participate
therein.
(b) In case the Company shall, while any of the Warrants are
outstanding, issue rights or warrants to purchase, or securities convertible
into or exchangeable for, Common Stock ("Rights") to any holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for, purchase,
convert or exchange shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subsection (e) of this Section 3) on the record date mentioned below, provided
the purchase price is less than the Per-Share Exercise Price theretofore in
effect, the Per-Share Exercise Price shall be adjusted so that the same shall
equal the amount determined by multiplying the Per-Share Exercise Price
theretofore in effect by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding on the date of issuance of such Rights
plus the number of shares which the aggregate offering price would purchase at
such current market price, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such Rights plus
the number of additional shares of Common Stock offered for subscription or
purchase. "Aggregate offering price," as used in the preceding
sentence, shall mean the amount received or receivable by the Company in
consideration of the issuance or sale of Rights plus any additional
consideration payable to the Company upon exercise thereof, in each case with
reference to the total number of shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made immediately prior to the opening of
business on the day following the date of issuance of Rights, retroactive to the
record date for the determination of stockholders entitled to receive Rights.
(c) In case the Company shall, by dividend or otherwise,
distribute to any holders of its outstanding shares of Common Stock, evidences
of its indebtedness, shares of any class or series of its stock, assets,
securities convertible into or exchangeable for any of its stock or rights or
warrants to subscribe for or purchase any of its securities (excluding any
Rights referred to in subsection (b) of this Section 3, any dividend or other
distribution paid exclusively in cash and any dividend or other distribution
referred to in subsection (a) of this Section 3), the Per-Share Exercise Price
shall be reduced so that the same shall equal the price determined by
multiplying the Per-Share Exercise Price theretofore in effect by a fraction the
numerator of which shall be the current market price (determined as provided in
subsection (e) of this Section 3) per share of Common Stock on the record date
referred to below less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive), on the record date
referred to below, of the portion of the evidences of indebtedness, shares of
stock, assets, convertible or exchangeable securities, rights or warrants
(including fractions) so distributed with respect to each share of Common Stock
and the denominator of which shall be such current market price per share of
Common Stock. Such adjustment shall be made immediately prior to the opening of
business on the day following the date on which any such distribution is made,
retroactive to the record date for the determination of stockholders entitled to
receive such distribution. In the event that no such dividend or other
distribution is so paid or made, the Per-Share Exercise Price shall again be
adjusted to be the Per-Share Exercise Price which would then be in effect if
such dividend or other distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when-issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share of Common Stock (determined as provided in subsection (e) of this
Section 3).
(d) In the case of any capital reorganization of the Company or
reclassification of the Common Stock, or any consolidation or merger to which
the Company is a party other than a merger or consolidation in which the Company
is the continuing corporation, or in the case of any sale or conveyance to
another entity of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the Holder shall have the right thereafter
to receive on the exercise of this Warrant the kind and
amount of securities, cash or other property which the Holder would have owned
or have been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrant. Notice of any such reorganization, reclassification, consolidation,
merger, exchange, sale or conveyance shall be mailed to the Holder not less than
ten (10) days prior to such event. The above provisions of this subsection (d)
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of the Warrant to be responsible for all
of the agreements and obligations of the Company hereunder.
(e) For the purpose of any computation under subsection (b) or (c)
of this Section 3, the current market price per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five (5) Trading Day period ending on the earlier of the day in question
and, if applicable, the last Trading Day before the "ex" date with respect to
the issuance or distribution requiring such computation; provided, however, that
if more than one event occurs that would require an adjustment pursuant to
subsections (a) through (d) of this Section 3, inclusive, the Board of Directors
shall in good faith make such adjustments to the Closing Prices during such five
(5) Trading Day period as it reasonably deems appropriate to effectuate the
intent of the adjustment provisions in this Section 3, in which case any such
determination by the Board of Directors shall be conclusive. For purposes of
this paragraph, the term "ex" date means the first date on which the shares of
Common Stock trade regular way, without the right to receive such issuance or
distribution, on the New York Stock Exchange or on such successor securities
exchange as the shares of Common Stock may be listed on or in the relevant
market from which the Closing Prices were obtained.
(f) No adjustment in the Per-Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Per-Share Exercise Price; provided, however, that any
adjustments which by reason of this subsection (f) are not required to be made
shall be carried forward and taken into account in determining whether any
subsequent adjustment shall be required.
(g) If any action would require adjustment of the Per-Share
Exercise Price pursuant to more than one of the provisions described above, only
one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder.
(h) Except as stated above, the Per-Share Exercise Price will not
be adjusted for the issuance of shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(i) In case the Company shall, by dividend or otherwise, declare
or make a distribution on the shares of Common Stock referred to in subsection
(c) of this Section 3, the Holder, upon the exercise thereof subsequent to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the effectiveness of the
Per-Share Exercise Price adjustment in respect of such distribution, shall be
entitled to receive, for each share of Common Stock for which the Warrant is
exercised, the portion of the evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities (including
fractions) so distributed with respect to each share of Common Stock; provided,
however, that, at the election of the Company with respect to all Holders so
exercising, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive). If any exercise of a Warrant described in the immediately preceding
sentence occurs prior to the payment date for a distribution to holders of
shares of Common Stock which the Holder of a Warrant so exercised is entitled to
receive in accordance with the immediately preceding sentence, the Company may
elect to distribute to such Holder a due bill for the evidences of indebtedness,
shares of stock, assets, securities convertible into or exchangeable for any of
its stock, or rights or warrants to subscribe for or purchase any of its
securities to which such Holder is so entitled, provided, that such due bill (a)
meets any applicable requirements of the principal national securities exchange
or other market on which the shares of Common Stock are then traded and (b)
requires payment or delivery of such evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
(j) Whenever the Per-Share Exercise Price is adjusted as provided
in this Section 3 and upon any modification of the rights of the Holder in
accordance with this Section 3, the Company shall promptly prepare a certificate
signed by the chief executive officer or the chief financial officer setting
forth the adjusted Per-Share Exercise Price and showing in reasonable detail the
facts requiring such adjustment or modification and the manner of computing the
same ("Adjustment Certificate") and cause copies of such certificate to be
mailed to the Holder.
(k) If the Board of Directors shall authorize and the Company
shall declare any dividend or other distribution with respect to the Common
Stock other than a distribution exclusively in cash, the Company shall mail
notice thereof to the Holder not less than ten (10) days prior to the record
date fixed for determining stockholders entitled to participate in such dividend
or other distribution.
(l) If, as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of stock or other securities,
the Board of Directors shall in good faith determine the allocation of the
adjusted Per-Share Exercise Price between or among such classes of stock or
other securities (whose determination shall be conclusive).
(m) Upon the expiration of any rights, options, warrants or
conversion privileges with respect to the issuance of which an adjustment to the
Per-Share Exercise Price had been made, if such shall not have been exercised,
the Per-Share Exercise Price, to the extent this Warrant has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) such shares of
Common Stock, if any, that were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Per-Share Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion privileges.
(n) Whenever the Per-Share Exercise Price is adjusted as provided
pursuant to this Section 3, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be adjusted by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, the numerator of
which shall be the Per-Share Exercise Price immediately prior to such
adjustment, and the denominator of which shall be the Per-Share Exercise Price
immediately thereafter.
(o) In case any event shall occur as to which the other provisions
of this Section 3 are not strictly applicable but as to which the failure to
make any adjustment would not fairly protect the purchase rights represented by
this Warrant in accordance with the essential intent and principles hereof then,
in each such case, the Board of Directors shall in good faith determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants (whose determination shall be conclusive) and shall
promptly make the adjustments described therein.
(p) If the Company shall take a record of the holders of its
Common Stock for any purpose requiring an adjustment hereunder, but shall,
thereafter and before the consummation of the event requiring such adjustment
legally abandon its plan, then thereafter no adjustment shall be required by
reason of the taking of such record and any such adjustment previously made in
respect thereof shall be rescinded and annulled.
(q) Notwithstanding anything herein to the contrary, no adjustment
to the Per-Share Exercise Price hereunder shall be made, to the extent it would
cause the Per-Share Exercise Price to be less than the par value of the Common
Stock.
4. Fully Paid Stock; Taxes. The shares of the Common Stock represented
by each and every certificate for Warrant Shares delivered upon the exercise of
this Warrant shall at the time of such delivery, be duly authorized, validly
issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights or rights of first refusal. The Company shall pay all
documentary, stamp or similar taxes and other similar governmental charges that
may be imposed with respect to the issuance or delivery of any shares of Common
Stock upon exercise of the Warrants (other than income taxes); provided,
however, that if the shares of Common Stock are to be delivered in a name other
than the name of the Holder, no such delivery shall be made unless the Person
requesting the same has paid to the Company the amount of transfer taxes or
charges incident thereto, if any.
5. HSR. To the extent required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the "HSR Act") following any exercise or exchange of
this Warrant pursuant to Section 1 by the Holder and prior to the issuance and
delivery of the certificates for the shares of Common Stock required thereby,
the Company and the Holder shall cooperate in the preparation of, and file with
the United States Federal Trade Commission and the United States Department of
Justice, the notification and report form required for such and any supplemental
or additional information which may be reasonably requested in connection
therewith pursuant to the HSR Act and shall comply in all material respects with
the requirements of the HSR Act. The fees to be paid in connection with any such
filing under the HSR Act shall be paid by the Holder.
6. Transfer; Etc.
(a) This Warrant may not be transferred without the consent of the
Company; provided, however, that that the Initial Holder may assign all or any
portion of this Warrant to one or more designated controlled Affiliates of X. X.
Xxxxxxx Corporation, a Delaware corporation, by execution of the form of
assignment attached hereto or a substantially equivalent assignment form. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder of this Warrant as he or it appears on the Company's books
at any time as the Holder for all purposes. The Company shall permit any Holder
of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(b) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the
Securities Act of 1933 and the applicable state securities "blue sky" laws, and
is so transferable only upon the books of the Company which it shall cause to be
maintained for such purpose.
(c) All Warrants issued upon the transfer or assignment of this
Warrant or part thereof or upon a partial exercise, exchange or purchase of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
(d) The Company shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the issue of any
certificates for Warrants in a name other than that of the registered Holder of
a Warrant surrendered upon the exercise or transfer of a Warrant and the Company
shall not be required to issue or deliver such certificates for Warrants unless
and until the Person or Persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or are not due and
owing.
(e) In connection with any transfer, the Holder will deliver to
the Company such certificates and other information as the Company may
reasonably require to confirm that the transfer complies with the foregoing
restrictions.
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Stockholder. This Warrant does not confer upon
the Holder any right to vote on, consent to or otherwise participate with
respect to matters to a vote of the stockholders of the Company or to receive
notice as a stockholder of the Company, as such, in respect of any matters
whatsoever, nor any other rights or liabilities as a stockholder, prior to the
exercise hereof; this Warrant does, however, require certain notices to the
Holder as set forth herein.
9. Communication. Any notice or other communication to be given
hereunder shall be given by hand delivery, by overnight carrier, in each case at
the addresses set forth in this section, and shall be deemed to have been given
when received. The Company or the Holder may change its address for receiving
notices by giving written notice of such change to the other.
If to the Company, to:
Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to the Holder, to:
Berkley Insurance Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.
12. Amendment, Waiver, etc. Except as expressly provided herein, neither
this Warrant nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the majority in
interest of the Holders.
13. Certain Definitions.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control", when used with
respect to any Person, means possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated", "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Company.
"Closing Price", with respect to any security on any day, means the
last reported sale price, regular way on such day, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Tape, or, if such
security is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities
exchange on which such security is listed or admitted to trading, or, if such
security is not listed or admitted to trading on a national securities exchange,
on the NASDAQ Stock Market of the National Association of Securities Dealers,
Inc., or, if such security is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which such security is
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
(or any committee duly authorized by the Board of Directors) for that purpose
or, if not so available in such manner, as otherwise determined in good faith by
the Board of Directors (or any committee duly authorized by the Board of
Directors).
"Initial Holder" means X. X. Xxxxxxx Corporation, a Delaware
corporation, and/or one or more of its designated Affiliates to whom it
transfers Warrants.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Trading Day" means a day on which any securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this 11th day of May, 2004.
CAPITAL TRUST, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
Chief Executive Officer
SUBSCRIPTION
The undersigned, ___________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
Capital Trust, Inc. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated:_______________ Signature:___________________________
Address:_____________________________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of
Capital Trust, Inc.
Dated:_______________ Signature:___________________________
Address:_____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and transfers unto
____________________ the right to purchase _______ shares of Common Stock, par
value $.01 per share, of Capital Trust, Inc. covered by the foregoing Warrant,
and a proportionate part of said Warrant and the rights evidenced thereby, and
does irrevocably constitute and appoint ____________________, attorney, to
transfer such part of said Warrant on the books of Capital Trust, Inc.
Dated:_______________ Signature:___________________________
Address:_____________________________
CAPITAL TRUST, INC.
Warrant for Class A Common Stock
FOR VALUE RECEIVED, Capital Trust, Inc., a Maryland corporation (the
"Company"), hereby grants, pursuant hereto (this "Warrant"), to Berkley Regional
Insurance Company (the "Initial Holder") or its permitted assigns, the right,
subject to the terms and conditions contained herein, to purchase from the
Company, at any time or from time to time commencing at the Commencement Time
(as defined below) and prior to 5:00 p.m., Eastern Time, on December 31, 2004,
up to NINETY ONE THOUSAND TWO HUNDRED AND FIFTY (91,250) (subject to adjustment
as provided herein) fully paid and non-assessable shares of class A common
stock, par value $.01 per share, of the Company for twenty-three dollars and
forty cents ($23.40) per share (subject to adjustment as provided herein) for an
aggregate purchase price (assuming full exercise) of TWO MILLION ONE HUNDRED
THIRTY FIVE THOUSAND AND TWO HUNDRED FIFTY DOLLARS ($2,135,250). The Aggregate
Exercise Price is not subject to adjustment.
Hereinafter, (i) said class A common stock, par value $.01 per
share, of the Company, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares purchasable hereunder is
referred to as the "Aggregate Exercise Price," (iv) the price payable for each
of the Warrant Shares is referred to as the "Per-Share Exercise Price," (v) this
Warrant, and all warrants hereafter issued in exchange for, in substitution for
or upon transfer of this Warrant are referred to as the "Warrants" and (vi) the
holders of this Warrant or any portion hereof in accordance with the terms
hereof from time to time are each referred to as a "Holder" and are collectively
referred to as the "Holders.") Definitions of other capitalized terms used
herein are set forth in Section 15 hereof.
1. Exercise of Warrant.
(a) This Warrant may be exercised in whole at any time, or in part
from time to time, commencing at the Commencement Time and prior to 5:00 p.m.,
Eastern Time, on December 31, 2004 (the "Exercise Period") by the Holder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) to the Company at the address set forth in Section 11 hereof, together
with proper payment
of the Aggregate Exercise Price, or the proportionate part thereof if this
Warrant is exercised in part, with payment for the Warrant Shares made by wire
transfer of immediately available funds or certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, it
must be exercised for a number of whole shares of Common Stock.
(b) The "Commencement Time" shall begin when the issuance of the
Warrant Shares shall have been approved by an affirmative vote of a majority of
the votes cast at the Company's 2004 annual meeting of shareholders or at any
adjournment or postponement thereof in accordance with Sections 310.00 and
312.03(c) of the New York Stock Exchange, Inc. Listed Company Manual.
(c) After any partial exercise or exchange, the Holder will be
entitled to receive a new Warrant covering the Warrant Shares as to which this
Warrant has not been exercised or exchanged and setting forth the proportionate
part of the Aggregate Exercise Price applicable to such Warrant Shares.
(d) As soon as practicable, but within ten (10) days following the
surrender of this Warrant and the receipt of payment of the Aggregate Exercise
Price, or the proportionate part thereof, as the case may be, pursuant to
subsection (a) of this Section 1, the Company, within seven (7) days,
(i) will issue a certificate or certificates in the name of
the Holder or such other Person designated in writing by the Holder for the
largest number of whole shares of Common Stock to which the Holder shall be
entitled by the exercise (full or partial, in accordance with the subscription
form) or exchange of this Warrant;
(ii) will, if this Warrant is exercised in whole, in lieu of
any fractional share of Common Stock to which the Holder shall be otherwise
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
shall determine), and
(iii) will deliver the other securities and properties
receivable upon the exercise or exchange of this Warrant, or the proportionate
part thereof if this Warrant is exercised or exchanged in part, pursuant to the
provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of 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. Throughout the period of time
during which this Warrant may be exercised, the Company shall use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on the New York Stock Exchange or on any other successor national
securities exchange or other relevant market on which the Common Stock is
listed, admitted to trading or traded.
3. Protection Against Dilution. The Per-Share Exercise Price and the
number of Warrant Shares purchasable upon the exercise of the Warrants shall be
subject to adjustment from time to time as set forth in this Section 3. Whenever
the Per-Share Exercise Price is adjusted by operation of this Section 3, the
number of Warrant Shares to be delivered upon exercise of the Warrants shall be
adjusted as provided in subsection (n) of this Section 3.
(a) In case the Company shall, while any of the Warrants are
outstanding, (i) pay a dividend or make any other distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of stock of the Company (other than the reclassifications covered by
subsection (d) of this Section 3), the Per-Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which shall be the
Aggregate Exercise Price and the denominator of which shall be the number of
shares of Common Stock or other stock of the Company that the Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto or, in the case of a dividend, distribution,
subdivision, combination or reclassification with respect to which a record date
has been established, prior to such record date. An adjustment made pursuant to
this subsection (a) shall be made immediately prior to the opening of business
on the day following (x) the date of the payment of the dividend or distribution
(retroactive to the record date) or (y) the effective date in the case of a
subdivision, combination or reclassification (retroactive to the record date, if
any). If the Board of Directors shall declare any dividend or distribution or
resolve to take any action referred to in this subsection (a), it shall provide
written notice thereof to the Holder not less than ten (10) days prior to the
record date fixed for determining the stockholders entitled to participate
therein.
(b) In case the Company shall, while any of the Warrants are
outstanding, issue rights or warrants to purchase, or securities convertible
into or exchangeable for, Common Stock ("Rights") to any holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for, purchase,
convert or exchange shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subsection (e) of this Section 3) on the record date mentioned below, provided
the purchase price is less than the Per-Share Exercise Price theretofore in
effect, the Per-Share Exercise Price shall be adjusted so that the same shall
equal the amount determined by multiplying the Per-Share Exercise Price
theretofore in effect by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding on the date of issuance of such Rights
plus the number of shares which the aggregate offering price would purchase at
such current market price, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such Rights plus
the number of additional shares of Common Stock offered for subscription or
purchase. "Aggregate offering price," as used in the preceding
sentence, shall mean the amount received or receivable by the Company in
consideration of the issuance or sale of Rights plus any additional
consideration payable to the Company upon exercise thereof, in each case with
reference to the total number of shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made immediately prior to the opening of
business on the day following the date of issuance of Rights, retroactive to the
record date for the determination of stockholders entitled to receive Rights.
(c) In case the Company shall, by dividend or otherwise,
distribute to any holders of its outstanding shares of Common Stock, evidences
of its indebtedness, shares of any class or series of its stock, assets,
securities convertible into or exchangeable for any of its stock or rights or
warrants to subscribe for or purchase any of its securities (excluding any
Rights referred to in subsection (b) of this Section 3, any dividend or other
distribution paid exclusively in cash and any dividend or other distribution
referred to in subsection (a) of this Section 3), the Per-Share Exercise Price
shall be reduced so that the same shall equal the price determined by
multiplying the Per-Share Exercise Price theretofore in effect by a fraction the
numerator of which shall be the current market price (determined as provided in
subsection (e) of this Section 3) per share of Common Stock on the record date
referred to below less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive), on the record date
referred to below, of the portion of the evidences of indebtedness, shares of
stock, assets, convertible or exchangeable securities, rights or warrants
(including fractions) so distributed with respect to each share of Common Stock
and the denominator of which shall be such current market price per share of
Common Stock. Such adjustment shall be made immediately prior to the opening of
business on the day following the date on which any such distribution is made,
retroactive to the record date for the determination of stockholders entitled to
receive such distribution. In the event that no such dividend or other
distribution is so paid or made, the Per-Share Exercise Price shall again be
adjusted to be the Per-Share Exercise Price which would then be in effect if
such dividend or other distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when-issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share of Common Stock (determined as provided in subsection (e) of this
Section 3).
(d) In the case of any capital reorganization of the Company or
reclassification of the Common Stock, or any consolidation or merger to which
the Company is a party other than a merger or consolidation in which the Company
is the continuing corporation, or in the case of any sale or conveyance to
another entity of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the Holder shall have the right thereafter
to receive on the exercise of this Warrant the kind and
amount of securities, cash or other property which the Holder would have owned
or have been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrant. Notice of any such reorganization, reclassification, consolidation,
merger, exchange, sale or conveyance shall be mailed to the Holder not less than
ten (10) days prior to such event. The above provisions of this subsection (d)
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of the Warrant to be responsible for all
of the agreements and obligations of the Company hereunder.
(e) For the purpose of any computation under subsection (b) or (c)
of this Section 3, the current market price per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five (5) Trading Day period ending on the earlier of the day in question
and, if applicable, the last Trading Day before the "ex" date with respect to
the issuance or distribution requiring such computation; provided, however, that
if more than one event occurs that would require an adjustment pursuant to
subsections (a) through (d) of this Section 3, inclusive, the Board of Directors
shall in good faith make such adjustments to the Closing Prices during such five
(5) Trading Day period as it reasonably deems appropriate to effectuate the
intent of the adjustment provisions in this Section 3, in which case any such
determination by the Board of Directors shall be conclusive. For purposes of
this paragraph, the term "ex" date means the first date on which the shares of
Common Stock trade regular way, without the right to receive such issuance or
distribution, on the New York Stock Exchange or on such successor securities
exchange as the shares of Common Stock may be listed on or in the relevant
market from which the Closing Prices were obtained.
(f) No adjustment in the Per-Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Per-Share Exercise Price; provided, however, that any
adjustments which by reason of this subsection (f) are not required to be made
shall be carried forward and taken into account in determining whether any
subsequent adjustment shall be required.
(g) If any action would require adjustment of the Per-Share
Exercise Price pursuant to more than one of the provisions described above, only
one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder.
(h) Except as stated above, the Per-Share Exercise Price will not
be adjusted for the issuance of shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(i) In case the Company shall, by dividend or otherwise, declare
or make a distribution on the shares of Common Stock referred to in subsection
(c) of this Section 3, the Holder, upon the exercise thereof subsequent to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the effectiveness of the
Per-Share Exercise Price adjustment in respect of such distribution, shall be
entitled to receive, for each share of Common Stock for which the Warrant is
exercised, the portion of the evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities (including
fractions) so distributed with respect to each share of Common Stock; provided,
however, that, at the election of the Company with respect to all Holders so
exercising, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive). If any exercise of a Warrant described in the immediately preceding
sentence occurs prior to the payment date for a distribution to holders of
shares of Common Stock which the Holder of a Warrant so exercised is entitled to
receive in accordance with the immediately preceding sentence, the Company may
elect to distribute to such Holder a due bill for the evidences of indebtedness,
shares of stock, assets, securities convertible into or exchangeable for any of
its stock, or rights or warrants to subscribe for or purchase any of its
securities to which such Holder is so entitled, provided, that such due bill (a)
meets any applicable requirements of the principal national securities exchange
or other market on which the shares of Common Stock are then traded and (b)
requires payment or delivery of such evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
(j) Whenever the Per-Share Exercise Price is adjusted as provided
in this Section 3 and upon any modification of the rights of the Holder in
accordance with this Section 3, the Company shall promptly prepare a certificate
signed by the chief executive officer or the chief financial officer setting
forth the adjusted Per-Share Exercise Price and showing in reasonable detail the
facts requiring such adjustment or modification and the manner of computing the
same ("Adjustment Certificate") and cause copies of such certificate to be
mailed to the Holder.
(k) If the Board of Directors shall authorize and the Company
shall declare any dividend or other distribution with respect to the Common
Stock other than a distribution exclusively in cash, the Company shall mail
notice thereof to the Holder not less than ten (10) days prior to the record
date fixed for determining stockholders entitled to participate in such dividend
or other distribution.
(l) If, as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of stock or other securities,
the Board of Directors shall in good faith determine the allocation of the
adjusted Per-Share Exercise Price between or among such classes of stock or
other securities (whose determination shall be conclusive).
(m) Upon the expiration of any rights, options, warrants or
conversion privileges with respect to the issuance of which an adjustment to the
Per-Share Exercise Price had been made, if such shall not have been exercised,
the Per-Share Exercise Price, to the extent this Warrant has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) such shares of
Common Stock, if any, that were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Per-Share Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion privileges.
(n) Whenever the Per-Share Exercise Price is adjusted as provided
pursuant to this Section 3, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be adjusted by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, the numerator of
which shall be the Per-Share Exercise Price immediately prior to such
adjustment, and the denominator of which shall be the Per-Share Exercise Price
immediately thereafter.
(o) In case any event shall occur as to which the other provisions
of this Section 3 are not strictly applicable but as to which the failure to
make any adjustment would not fairly protect the purchase rights represented by
this Warrant in accordance with the essential intent and principles hereof then,
in each such case, the Board of Directors shall in good faith determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants (whose determination shall be conclusive) and shall
promptly make the adjustments described therein.
(p) If the Company shall take a record of the holders of its
Common Stock for any purpose requiring an adjustment hereunder, but shall,
thereafter and before the consummation of the event requiring such adjustment
legally abandon its plan, then thereafter no adjustment shall be required by
reason of the taking of such record and any such adjustment previously made in
respect thereof shall be rescinded and annulled.
(q) Notwithstanding anything herein to the contrary, no adjustment
to the Per-Share Exercise Price hereunder shall be made, to the extent it would
cause the Per-Share Exercise Price to be less than the par value of the Common
Stock.
4. Fully Paid Stock; Taxes. The shares of the Common Stock represented
by each and every certificate for Warrant Shares delivered upon the exercise of
this Warrant shall at the time of such delivery, be duly authorized, validly
issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights or rights of first refusal. The Company shall pay all
documentary, stamp or similar taxes and other similar governmental charges that
may be imposed with respect to the issuance or delivery of any shares of Common
Stock upon exercise of the Warrants (other than income taxes); provided,
however, that if the shares of Common Stock are to be delivered in a name other
than the name of the Holder, no such delivery shall be made unless the Person
requesting the same has paid to the Company the amount of transfer taxes or
charges incident thereto, if any.
5. HSR. To the extent required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the "HSR Act") following any exercise or exchange of
this Warrant pursuant to Section 1 by the Holder and prior to the issuance and
delivery of the certificates for the shares of Common Stock required thereby,
the Company and the Holder shall cooperate in the preparation of, and file with
the United States Federal Trade Commission and the United States Department of
Justice, the notification and report form required for such and any supplemental
or additional information which may be reasonably requested in connection
therewith pursuant to the HSR Act and shall comply in all material respects with
the requirements of the HSR Act. The fees to be paid in connection with any such
filing under the HSR Act shall be paid by the Holder.
6. Transfer; Etc.
(a) This Warrant may not be transferred without the consent of the
Company; provided, however, that that the Initial Holder may assign all or any
portion of this Warrant to one or more designated controlled Affiliates of X. X.
Xxxxxxx Corporation, a Delaware corporation, by execution of the form of
assignment attached hereto or a substantially equivalent assignment form. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder of this Warrant as he or it appears on the Company's books
at any time as the Holder for all purposes. The Company shall permit any Holder
of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(b) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the
Securities Act of 1933 and the applicable state securities "blue sky" laws, and
is so transferable only upon the books of the Company which it shall cause to be
maintained for such purpose.
(c) All Warrants issued upon the transfer or assignment of this
Warrant or part thereof or upon a partial exercise, exchange or purchase of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
(d) The Company shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the issue of any
certificates for Warrants in a name other than that of the registered Holder of
a Warrant surrendered upon the exercise or transfer of a Warrant and the Company
shall not be required to issue or deliver such certificates for Warrants unless
and until the Person or Persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or are not due and
owing.
(e) In connection with any transfer, the Holder will deliver to
the Company such certificates and other information as the Company may
reasonably require to confirm that the transfer complies with the foregoing
restrictions.
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Stockholder. This Warrant does not confer upon
the Holder any right to vote on, consent to or otherwise participate with
respect to matters to a vote of the stockholders of the Company or to receive
notice as a stockholder of the Company, as such, in respect of any matters
whatsoever, nor any other rights or liabilities as a stockholder, prior to the
exercise hereof; this Warrant does, however, require certain notices to the
Holder as set forth herein.
9. Communication. Any notice or other communication to be given
hereunder shall be given by hand delivery, by overnight carrier, in each case at
the addresses set forth in this section, and shall be deemed to have been given
when received. The Company or the Holder may change its address for receiving
notices by giving written notice of such change to the other.
If to the Company, to:
Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to the Holder, to:
Berkley Regional Insurance Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.
12. Amendment, Waiver, etc. Except as expressly provided herein, neither
this Warrant nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the majority in
interest of the Holders.
13. Certain Definitions.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control", when used with
respect to any Person, means possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated", "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Company.
"Closing Price", with respect to any security on any day, means the
last reported sale price, regular way on such day, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Tape, or, if such
security is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities
exchange on which such security is listed or admitted to trading, or, if such
security is not listed or admitted to trading on a national securities exchange,
on the NASDAQ Stock Market of the National Association of Securities Dealers,
Inc., or, if such security is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which such security is
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
(or any committee duly authorized by the Board of Directors) for that purpose
or, if not so available in such manner, as otherwise determined in good faith by
the Board of Directors (or any committee duly authorized by the Board of
Directors).
"Initial Holder" means X. X. Xxxxxxx Corporation, a Delaware
corporation, and/or one or more of its designated Affiliates to whom it
transfers Warrants.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Trading Day" means a day on which any securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this 11th day of May, 2004.
CAPITAL TRUST, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
Chief Executive Officer
SUBSCRIPTION
The undersigned, ___________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
Capital Trust, Inc. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated:_______________ Signature:__________________________
Address:____________________________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of
Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and transfers unto
____________________ the right to purchase _______ shares of Common Stock, par
value $.01 per share, of Capital Trust, Inc. covered by the foregoing Warrant,
and a proportionate part of said Warrant and the rights evidenced thereby, and
does irrevocably constitute and appoint ____________________, attorney, to
transfer such part of said Warrant on the books of Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
CAPITAL TRUST, INC.
Warrant for Class A Common Stock
FOR VALUE RECEIVED, Capital Trust, Inc., a Maryland corporation (the
"Company"), hereby grants, pursuant hereto (this "Warrant"), to Nautilus
Insurance Company (the "Initial Holder") or its permitted assigns, the right,
subject to the terms and conditions contained herein, to purchase from the
Company, at any time or from time to time commencing at the Commencement Time
(as defined below) and prior to 5:00 p.m., Eastern Time, on December 31, 2004,
up to NINETY ONE THOUSAND TWO HUNDRED AND FIFTY (91,250) (subject to adjustment
as provided herein) fully paid and non-assessable shares of class A common
stock, par value $.01 per share, of the Company for twenty-three dollars and
forty cents ($23.40) per share (subject to adjustment as provided herein) for an
aggregate purchase price (assuming full exercise) of TWO MILLION ONE HUNDRED
THIRTY FIVE THOUSAND AND TWO HUNDRED FIFTY DOLLARS ($2,135,250). The Aggregate
Exercise Price is not subject to adjustment.
Hereinafter, (i) said class A common stock, par value $.01 per
share, of the Company, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares purchasable hereunder is
referred to as the "Aggregate Exercise Price," (iv) the price payable for each
of the Warrant Shares is referred to as the "Per-Share Exercise Price," (v) this
Warrant, and all warrants hereafter issued in exchange for, in substitution for
or upon transfer of this Warrant are referred to as the "Warrants" and (vi) the
holders of this Warrant or any portion hereof in accordance with the terms
hereof from time to time are each referred to as a "Holder" and are collectively
referred to as the "Holders.") Definitions of other capitalized terms used
herein are set forth in Section 15 hereof.
1. Exercise of Warrant.
(a) This Warrant may be exercised in whole at any time, or in part
from time to time, commencing at the Commencement Time and prior to 5:00 p.m.,
Eastern Time, on December 31, 2004 (the "Exercise Period") by the Holder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) to the Company at the address set forth in Section 11 hereof, together
with proper payment
of the Aggregate Exercise Price, or the proportionate part thereof if this
Warrant is exercised in part, with payment for the Warrant Shares made by wire
transfer of immediately available funds or certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, it
must be exercised for a number of whole shares of Common Stock.
(b) The "Commencement Time" shall begin when the issuance of the
Warrant Shares shall have been approved by an affirmative vote of a majority of
the votes cast at the Company's 2004 annual meeting of shareholders or at any
adjournment or postponement thereof in accordance with Sections 310.00 and
312.03(c) of the New York Stock Exchange, Inc. Listed Company Manual.
(c) After any partial exercise or exchange, the Holder will be
entitled to receive a new Warrant covering the Warrant Shares as to which this
Warrant has not been exercised or exchanged and setting forth the proportionate
part of the Aggregate Exercise Price applicable to such Warrant Shares.
(d) As soon as practicable, but within ten (10) days following the
surrender of this Warrant and the receipt of payment of the Aggregate Exercise
Price, or the proportionate part thereof, as the case may be, pursuant to
subsection (a) of this Section 1, the Company, within seven (7) days,
(i) will issue a certificate or certificates in the name of
the Holder or such other Person designated in writing by the Holder for the
largest number of whole shares of Common Stock to which the Holder shall be
entitled by the exercise (full or partial, in accordance with the subscription
form) or exchange of this Warrant;
(ii) will, if this Warrant is exercised in whole, in lieu of
any fractional share of Common Stock to which the Holder shall be otherwise
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
shall determine), and
(iii) will deliver the other securities and properties
receivable upon the exercise or exchange of this Warrant, or the proportionate
part thereof if this Warrant is exercised or exchanged in part, pursuant to the
provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of 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. Throughout the period of time
during which this Warrant may be exercised, the Company shall use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on the New York Stock Exchange or on any other successor national
securities exchange or other relevant market on which the Common Stock is
listed, admitted to trading or traded.
3. Protection Against Dilution. The Per-Share Exercise Price and the
number of Warrant Shares purchasable upon the exercise of the Warrants shall be
subject to adjustment from time to time as set forth in this Section 3. Whenever
the Per-Share Exercise Price is adjusted by operation of this Section 3, the
number of Warrant Shares to be delivered upon exercise of the Warrants shall be
adjusted as provided in subsection (n) of this Section 3.
(a) In case the Company shall, while any of the Warrants are
outstanding, (i) pay a dividend or make any other distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of stock of the Company (other than the reclassifications covered by
subsection (d) of this Section 3), the Per-Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which shall be the
Aggregate Exercise Price and the denominator of which shall be the number of
shares of Common Stock or other stock of the Company that the Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto or, in the case of a dividend, distribution,
subdivision, combination or reclassification with respect to which a record date
has been established, prior to such record date. An adjustment made pursuant to
this subsection (a) shall be made immediately prior to the opening of business
on the day following (x) the date of the payment of the dividend or distribution
(retroactive to the record date) or (y) the effective date in the case of a
subdivision, combination or reclassification (retroactive to the record date, if
any). If the Board of Directors shall declare any dividend or distribution or
resolve to take any action referred to in this subsection (a), it shall provide
written notice thereof to the Holder not less than ten (10) days prior to the
record date fixed for determining the stockholders entitled to participate
therein.
(b) In case the Company shall, while any of the Warrants are
outstanding, issue rights or warrants to purchase, or securities convertible
into or exchangeable for, Common Stock ("Rights") to any holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for, purchase,
convert or exchange shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subsection (e) of this Section 3) on the record date mentioned below, provided
the purchase price is less than the Per-Share Exercise Price theretofore in
effect, the Per-Share Exercise Price shall be adjusted so that the same shall
equal the amount determined by multiplying the Per-Share Exercise Price
theretofore in effect by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding on the date of issuance of such Rights
plus the number of shares which the aggregate offering price would purchase at
such current market price, and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such Rights plus
the number of additional shares of Common Stock offered for subscription or
purchase. "Aggregate offering price," as used in the preceding
sentence, shall mean the amount received or receivable by the Company in
consideration of the issuance or sale of Rights plus any additional
consideration payable to the Company upon exercise thereof, in each case with
reference to the total number of shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made immediately prior to the opening of
business on the day following the date of issuance of Rights, retroactive to the
record date for the determination of stockholders entitled to receive Rights.
(c) In case the Company shall, by dividend or otherwise,
distribute to any holders of its outstanding shares of Common Stock, evidences
of its indebtedness, shares of any class or series of its stock, assets,
securities convertible into or exchangeable for any of its stock or rights or
warrants to subscribe for or purchase any of its securities (excluding any
Rights referred to in subsection (b) of this Section 3, any dividend or other
distribution paid exclusively in cash and any dividend or other distribution
referred to in subsection (a) of this Section 3), the Per-Share Exercise Price
shall be reduced so that the same shall equal the price determined by
multiplying the Per-Share Exercise Price theretofore in effect by a fraction the
numerator of which shall be the current market price (determined as provided in
subsection (e) of this Section 3) per share of Common Stock on the record date
referred to below less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive), on the record date
referred to below, of the portion of the evidences of indebtedness, shares of
stock, assets, convertible or exchangeable securities, rights or warrants
(including fractions) so distributed with respect to each share of Common Stock
and the denominator of which shall be such current market price per share of
Common Stock. Such adjustment shall be made immediately prior to the opening of
business on the day following the date on which any such distribution is made,
retroactive to the record date for the determination of stockholders entitled to
receive such distribution. In the event that no such dividend or other
distribution is so paid or made, the Per-Share Exercise Price shall again be
adjusted to be the Per-Share Exercise Price which would then be in effect if
such dividend or other distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when-issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share of Common Stock (determined as provided in subsection (e) of this
Section 3).
(d) In the case of any capital reorganization of the Company or
reclassification of the Common Stock, or any consolidation or merger to which
the Company is a party other than a merger or consolidation in which the Company
is the continuing corporation, or in the case of any sale or conveyance to
another entity of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the Holder shall have the right thereafter
to receive on the exercise of this Warrant the kind and
amount of securities, cash or other property which the Holder would have owned
or have been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrant. Notice of any such reorganization, reclassification, consolidation,
merger, exchange, sale or conveyance shall be mailed to the Holder not less than
ten (10) days prior to such event. The above provisions of this subsection (d)
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The Company
shall require the issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of the Warrant to be responsible for all
of the agreements and obligations of the Company hereunder.
(e) For the purpose of any computation under subsection (b) or (c)
of this Section 3, the current market price per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five (5) Trading Day period ending on the earlier of the day in question
and, if applicable, the last Trading Day before the "ex" date with respect to
the issuance or distribution requiring such computation; provided, however, that
if more than one event occurs that would require an adjustment pursuant to
subsections (a) through (d) of this Section 3, inclusive, the Board of Directors
shall in good faith make such adjustments to the Closing Prices during such five
(5) Trading Day period as it reasonably deems appropriate to effectuate the
intent of the adjustment provisions in this Section 3, in which case any such
determination by the Board of Directors shall be conclusive. For purposes of
this paragraph, the term "ex" date means the first date on which the shares of
Common Stock trade regular way, without the right to receive such issuance or
distribution, on the New York Stock Exchange or on such successor securities
exchange as the shares of Common Stock may be listed on or in the relevant
market from which the Closing Prices were obtained.
(f) No adjustment in the Per-Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Per-Share Exercise Price; provided, however, that any
adjustments which by reason of this subsection (f) are not required to be made
shall be carried forward and taken into account in determining whether any
subsequent adjustment shall be required.
(g) If any action would require adjustment of the Per-Share
Exercise Price pursuant to more than one of the provisions described above, only
one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder.
(h) Except as stated above, the Per-Share Exercise Price will not
be adjusted for the issuance of shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(i) In case the Company shall, by dividend or otherwise, declare
or make a distribution on the shares of Common Stock referred to in subsection
(c) of this Section 3, the Holder, upon the exercise thereof subsequent to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the effectiveness of the
Per-Share Exercise Price adjustment in respect of such distribution, shall be
entitled to receive, for each share of Common Stock for which the Warrant is
exercised, the portion of the evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities (including
fractions) so distributed with respect to each share of Common Stock; provided,
however, that, at the election of the Company with respect to all Holders so
exercising, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive). If any exercise of a Warrant described in the immediately preceding
sentence occurs prior to the payment date for a distribution to holders of
shares of Common Stock which the Holder of a Warrant so exercised is entitled to
receive in accordance with the immediately preceding sentence, the Company may
elect to distribute to such Holder a due bill for the evidences of indebtedness,
shares of stock, assets, securities convertible into or exchangeable for any of
its stock, or rights or warrants to subscribe for or purchase any of its
securities to which such Holder is so entitled, provided, that such due bill (a)
meets any applicable requirements of the principal national securities exchange
or other market on which the shares of Common Stock are then traded and (b)
requires payment or delivery of such evidences of indebtedness, shares of stock,
assets, securities convertible into or exchangeable for any of its stock, or
rights or warrants to subscribe for or purchase any of its securities no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
(j) Whenever the Per-Share Exercise Price is adjusted as provided
in this Section 3 and upon any modification of the rights of the Holder in
accordance with this Section 3, the Company shall promptly prepare a certificate
signed by the chief executive officer or the chief financial officer setting
forth the adjusted Per-Share Exercise Price and showing in reasonable detail the
facts requiring such adjustment or modification and the manner of computing the
same ("Adjustment Certificate") and cause copies of such certificate to be
mailed to the Holder.
(k) If the Board of Directors shall authorize and the Company
shall declare any dividend or other distribution with respect to the Common
Stock other than a distribution exclusively in cash, the Company shall mail
notice thereof to the Holder not less than ten (10) days prior to the record
date fixed for determining stockholders entitled to participate in such dividend
or other distribution.
(l) If, as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of stock or other securities,
the Board of Directors shall in good faith determine the allocation of the
adjusted Per-Share Exercise Price between or among such classes of stock or
other securities (whose determination shall be conclusive).
(m) Upon the expiration of any rights, options, warrants or
conversion privileges with respect to the issuance of which an adjustment to the
Per-Share Exercise Price had been made, if such shall not have been exercised,
the Per-Share Exercise Price, to the extent this Warrant has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) such shares of
Common Stock, if any, that were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Per-Share Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion privileges.
(n) Whenever the Per-Share Exercise Price is adjusted as provided
pursuant to this Section 3, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be adjusted by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, the numerator of
which shall be the Per-Share Exercise Price immediately prior to such
adjustment, and the denominator of which shall be the Per-Share Exercise Price
immediately thereafter.
(o) In case any event shall occur as to which the other provisions
of this Section 3 are not strictly applicable but as to which the failure to
make any adjustment would not fairly protect the purchase rights represented by
this Warrant in accordance with the essential intent and principles hereof then,
in each such case, the Board of Directors shall in good faith determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants (whose determination shall be conclusive) and shall
promptly make the adjustments described therein.
(p) If the Company shall take a record of the holders of its
Common Stock for any purpose requiring an adjustment hereunder, but shall,
thereafter and before the consummation of the event requiring such adjustment
legally abandon its plan, then thereafter no adjustment shall be required by
reason of the taking of such record and any such adjustment previously made in
respect thereof shall be rescinded and annulled.
(q) Notwithstanding anything herein to the contrary, no adjustment
to the Per-Share Exercise Price hereunder shall be made, to the extent it would
cause the Per-Share Exercise Price to be less than the par value of the Common
Stock.
4. Fully Paid Stock; Taxes. The shares of the Common Stock represented
by each and every certificate for Warrant Shares delivered upon the exercise of
this Warrant shall at the time of such delivery, be duly authorized, validly
issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights or rights of first refusal. The Company shall pay all
documentary, stamp or similar taxes and other similar governmental charges that
may be imposed with respect to the issuance or delivery of any shares of Common
Stock upon exercise of the Warrants (other than income taxes); provided,
however, that if the shares of Common Stock are to be delivered in a name other
than the name of the Holder, no such delivery shall be made unless the Person
requesting the same has paid to the Company the amount of transfer taxes or
charges incident thereto, if any.
5. HSR. To the extent required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the "HSR Act") following any exercise or exchange of
this Warrant pursuant to Section 1 by the Holder and prior to the issuance and
delivery of the certificates for the shares of Common Stock required thereby,
the Company and the Holder shall cooperate in the preparation of, and file with
the United States Federal Trade Commission and the United States Department of
Justice, the notification and report form required for such and any supplemental
or additional information which may be reasonably requested in connection
therewith pursuant to the HSR Act and shall comply in all material respects with
the requirements of the HSR Act. The fees to be paid in connection with any such
filing under the HSR Act shall be paid by the Holder.
6. Transfer; Etc.
(a) This Warrant may not be transferred without the consent of the
Company; provided, however, that that the Initial Holder may assign all or any
portion of this Warrant to one or more designated controlled Affiliates of X. X.
Xxxxxxx Corporation, a Delaware corporation, by execution of the form of
assignment attached hereto or a substantially equivalent assignment form. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder of this Warrant as he or it appears on the Company's books
at any time as the Holder for all purposes. The Company shall permit any Holder
of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(b) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the
Securities Act of 1933 and the applicable state securities "blue sky" laws, and
is so transferable only upon the books of the Company which it shall cause to be
maintained for such purpose.
(c) All Warrants issued upon the transfer or assignment of this
Warrant or part thereof or upon a partial exercise, exchange or purchase of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
(d) The Company shall not be required to pay any tax or taxes
which may be payable in respect of any transfer involved in the issue of any
certificates for Warrants in a name other than that of the registered Holder of
a Warrant surrendered upon the exercise or transfer of a Warrant and the Company
shall not be required to issue or deliver such certificates for Warrants unless
and until the Person or Persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or are not due and
owing.
(e) In connection with any transfer, the Holder will deliver to
the Company such certificates and other information as the Company may
reasonably require to confirm that the transfer complies with the foregoing
restrictions.
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Stockholder. This Warrant does not confer upon
the Holder any right to vote on, consent to or otherwise participate with
respect to matters to a vote of the stockholders of the Company or to receive
notice as a stockholder of the Company, as such, in respect of any matters
whatsoever, nor any other rights or liabilities as a stockholder, prior to the
exercise hereof; this Warrant does, however, require certain notices to the
Holder as set forth herein.
9. Communication. Any notice or other communication to be given
hereunder shall be given by hand delivery, by overnight carrier, in each case at
the addresses set forth in this section, and shall be deemed to have been given
when received. The Company or the Holder may change its address for receiving
notices by giving written notice of such change to the other.
If to the Company, to:
Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
If to the Holder, to:
Nautilus Insurance Company
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.
12. Amendment, Waiver, etc. Except as expressly provided herein, neither
this Warrant nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the majority in
interest of the Holders.
13. Certain Definitions.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control", when used with
respect to any Person, means possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated", "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Company.
"Closing Price", with respect to any security on any day, means the
last reported sale price, regular way on such day, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Composite Tape, or, if such
security is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities
exchange on which such security is listed or admitted to trading, or, if such
security is not listed or admitted to trading on a national securities exchange,
on the NASDAQ Stock Market of the National Association of Securities Dealers,
Inc., or, if such security is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which such security is
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
(or any committee duly authorized by the Board of Directors) for that purpose
or, if not so available in such manner, as otherwise determined in good faith by
the Board of Directors (or any committee duly authorized by the Board of
Directors).
"Initial Holder" means X. X. Xxxxxxx Corporation, a Delaware
corporation, and/or one or more of its designated Affiliates to whom it
transfers Warrants.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
"Trading Day" means a day on which any securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this 11th day of May, 2004.
CAPITAL TRUST, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
SUBSCRIPTION
The undersigned, ___________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
Capital Trust, Inc. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated:_______________ Signature:__________________________
Address:____________________________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of
Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and transfers unto
____________________ the right to purchase _______ shares of Common Stock, par
value $.01 per share, of Capital Trust, Inc. covered by the foregoing Warrant,
and a proportionate part of said Warrant and the rights evidenced thereby, and
does irrevocably constitute and appoint ____________________, attorney, to
transfer such part of said Warrant on the books of Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
