Exhibit 4.6
THIS WARRANT, THE SHARES OF COMMON STOCK AND THE COMMON UNITS (IF APPLICABLE)
ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND QUALIFICATION PURSUANT TO ANY APPLICABLE STATE
SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM,
THAT REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER SAID ACT OR LAWS OR
(II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THIS WARRANT MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN, REPURCHASE FACILITY, OR OTHER FINANCING ARRANGEMENT
SECURED BY THIS WARRANT.
THE XXXXX CORPORATION
AND
THE XXXXX LIMITED PARTNERSHIP
AMENDED AND RESTATED
CONTINGENT SECURITIES PURCHASE WARRANT
Warrant No. P-2
Date of Issuance: May 11, 2001
1. ISSUANCE. This Warrant is issued to iStar Preferred Holdings LLC, a
Delaware limited liability company (the "BUYER"), by The Xxxxx Corporation, a
Delaware corporation (hereinafter with its successors called the "COMPANY"), and
by The Xxxxx Limited Partnership, a Delaware limited partnership (the "OPERATING
PARTNERSHIP"), pursuant to that certain Securities Purchase Agreement dated as
of April 27, 2001, as amended by Amendment No. 1 dated as of May 11, 2001,
between the Company, the Operating Partnership and Buyer (the "PURCHASE
AGREEMENT"). This Warrant amends, restates and supersedes that certain Warrant
No. P-1 issued by the Company to Buyer as of April 30, 2001, which has been
returned to the Company and canceled. Terms used herein and not otherwise
defined shall have the meaning ascribed to them in Section 23 hereof or in the
Purchase Agreement.
2. PURCHASE PRICE; NUMBER OF SHARES.
(a) Subject to the terms and conditions hereinafter set forth,
including the provisions of Section 3 below, the registered holder of this
Warrant (the "HOLDER"), during the Exercise Period (as defined in Section 4), is
entitled, upon surrender of this Warrant with a duly executed subscription
notice substantially in the form of EXHIBIT A (including a counterpart signature
page to the Amended and Restated Ownership Limit Waiver Agreement attached
thereto as EXHIBIT 1) attached hereto (the "SUBSCRIPTION NOTICE"), at the office
of the Company
at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Chief
Executive Officer, or such other office as the Company shall notify the Holder
of in writing, to purchase from the Company at a price per share equal to $25
(as adjusted from time to time pursuant to Section 11 hereto, the "PURCHASE
PRICE") the number of fully paid and nonassessable shares of Common Stock, $0.01
par value, of the Company (the "COMMON STOCK") determined by (i) multiplying the
number of Series A Preferred Shares, if any, purchased by the Company from the
Holder during the Early Call Period, appropriately adjusted for any stock split
or combination of the Series A Preferred Shares prior to such purchase by the
Company, by the Series A Conversion Value that would then be in effect (as
defined in and determined pursuant to the Company's Certificate of Designations,
Preferences and Rights relating to the Series A Cumulative Convertible Preferred
Stock), assuming that the Company has timely paid all dividends as they become
due and that no Event of Noncompliance has occurred, and (ii) dividing the
resulting product by the Purchase Price in effect on such date of purchase.
Until such time as this Warrant is exercised in full or expires, the Purchase
Price, the number of shares of Common Stock issuable upon exercise of this
Warrant and the type of security issuable upon exercise of this Warrant are
subject to adjustment as hereinafter provided.
(b) If at the time of Holder's exercise of this Warrant,
the Operating Partnership has purchased from Holder Series A-2 Preferred
Units of the Operating Partnership, then upon such exercise in accordance
with the provisions of Section 2(a) above, Holder shall be entitled to
purchase from the Operating Partnership at a price per unit equal to $25 (as
adjusted by any splits or combinations (or the like) of the Common Units, the
"UNIT PURCHASE PRICE") the number of fully paid and nonassessable Common
Units of the Operating Partnership determined by: (i) multiplying the number
of Series A-2 Preferred Units, if any, purchased by the Operating Partnership
from the Holder during the Early Call Period, appropriately adjusted for any
split or combination in the Series A-2 Preferred Units prior to such purchase
by the Operating Partnership, by the Series A-2 Conversion Value that would
then be in effect (as defined in and determined pursuant to the Designation,
Preferences and Rights of Series A-2 Cumulative Convertible Preferred Units
of the Operating Partnership), assuming that the Operating Partnership has
timely paid all distributions as they become due and that no Event of
Noncompliance has occurred, and (ii) dividing the resulting product by the
Unit Purchase Price in effect on such date of purchase. Until such time as
this Warrant is exercised in full or expires, the Unit Purchase Price and the
number of Common Units issuable upon exercise of this Warrant are subject to
adjustment as hereinafter provided.
3. COMMON UNITS ISSUED IN LIEU OF COMMON STOCK. If, upon exercise of
this Warrant pursuant to Section 2 above, Holder cannot make the representations
set forth in EXHIBIT 2 attached to the Subscription Notice or if the Company
advises Holder in writing that, after reasonable due diligence conducted in
cooperation with Holder, the Company has concluded in good faith that the Tax
Conditions would not be satisfied, then Common Units of the Operating
Partnership shall be issued to Holder in lieu of shares of Common Stock that,
but for the operation of this Section 3, would have been issued to Holder upon
exercise of this Warrant. If upon exercise of this Warrant, Holder shall not be
issued the full number of shares of Common Stock otherwise issuable hereunder
because of the operation of the preceding sentence, Holder shall be issued such
number of shares of Common Stock so that, after giving effect to such
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issuance, Holder's ownership of the capital stock of the Company is less than,
but as near as possible to, 9.9% of the value of the capital stock of the
Company (taking into account any attribution of the Company's capital stock to
Holder arising from Holder's 10% or greater shareholders, as determined under
Section 318(a) of the Internal Revenue Code of 1986, as amended (the "CODE"), as
modified by Section 856(d) of the Code), such value to be computed utilizing the
average closing price of the Company's Common Stock on the New York Stock
Exchange for the ten trading days ending on the trading day immediately
preceding the date of Holder's exercise hereof. For each share of Common Stock
that, but for the operation of this Section 3, would have been issued to Holder
upon the exercise of this Warrant, Holder shall be issued by the Operating
Partnership, concurrently with the issuance of Common Stock by the Company
hereunder, a number of Common Units of the Operating Partnership equal to the
quotient of one divided by the Conversion Multiple.
4. EXERCISE PERIOD. Holder may not exercise this Warrant unless the
Company exercises its Call Option during the Early Call Period. Holder may
exercise this Warrant at any time (a) following the latest to occur of (1) the
delivery of Holder of any certificates representing shares of the Series A
Preferred Shares held by Holder; (2) the Call Option Closing (as defined in the
Purchase Agreement) and (3) payment by the Company of the Call Option Exercise
Price (as defined in the Purchase Agreement) and (b) prior to the close of
business on the first business day after the end of the Early Call Period (the
"EXERCISE PERIOD"). For avoidance of doubt, if the Company does not exercise a
Call Option during the Early Call Period, Holder may not exercise this Warrant
for shares of Common Stock, or Common Units (if applicable), that are issuable
hereunder.
5. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) by
wire transfer of immediately available funds, (ii) by the surrender by the
Holder to the Company of any promissory notes or other obligations issued by the
Company or the Operating Partnership, as the case may be, with all such notes
and obligations so surrendered being credited against the aggregate Purchase
Price in an amount equal to the principal amount thereof plus accrued interest
to the date of surrender and (iii) by any combination of the foregoing.
6. RESTRICTION ON TRANSFER OF COMMON STOCK OR COMMON UNITS. Upon the
exercise of this Warrant, Holder may not sell or transfer the Common Stock or
Common Units received upon exercise hereof (the "WARRANT SHARES") before the
date that is thirty-two (32) days after the date of exercise, as determined
pursuant to SECTION 8 hereof, without the Company's consent and no sale or
transfer prior to such date will be recorded on the Company's books without the
Company's consent.
7. PARTIAL EXERCISE. This Warrant may be exercised in whole or in part,
and, if exercised in part, the Holder shall be entitled to receive a new
warrant, which shall be dated as of the date of this Warrant, covering the
number of shares in respect of which this Warrant shall not have been exercised.
8. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock or any instrument evidencing
ownership of Common
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Units (if applicable) is to be issued hereunder shall be deemed to have become
the holder of record of the shares or units represented thereby as at the close
of business on the first Business Day that is on or after the date on which this
Warrant has been surrendered, along with duly completed and executed copies of
the Subscription Notice and, if applicable, the exhibits thereto, at the
principal office of the Company and payment of the Purchase Price made with
respect to such shares, whether or not any certificate or instrument is
delivered; provided, however, that if this Warrant is surrendered or if payment
of the Purchase Price is made after the close of business on any date, then such
surrender and payment shall be deemed to have been made on the next following
Business Day.
9. EXPIRATION DATE. This Warrant shall expire at the close of business
on the first Business Day after the end of the Early Call Period, and shall be
void thereafter.
10. RESERVED SHARES; VALID ISSUANCE. The Company shall at all times
reserve and keep available, out of its authorized but unissued Common Stock,
such number of shares of Common Stock as would be issuable upon the exercise of
this Warrant in full. The issuance of certificates for shares of Common Stock or
any instrument evidencing ownership of Common Units (if applicable) upon
exercise of this Warrant will be made without charge to the Holder for any
issuance tax in respect thereof or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Common Stock
or Common Units, except that the Holder shall pay any tax which is due solely
because the shares of Common Stock or Common Units issued upon exercise are
issued in a name other than that of the Holder. Upon exercise of this Warrant,
the Company will take all such actions as are necessary in order to insure that
the Common Stock issuable with respect to such exercise will be validly issued,
fully paid and nonassessable and, if applicable, the Operating Partnership will
take all such actions as are necessary in order to insure that the Common Units
issuable with respect to such exercise will be validly issued, fully paid and
nonassessable.
11. SUBDIVISION OR COMBINATION OF COMMON STOCK OR COMMON UNITS; STOCK
DIVIDENDS; UNITS DISTRIBUTIONS. If after the issue date hereof, the Company
shall subdivide its outstanding shares of Common Stock (by any stock split,
recapitalization or otherwise), or combine its outstanding shares of Common
Stock (by reverse stock split or otherwise), or issue additional shares of
Common Stock in payment of a stock dividend on the Common Stock, the number of
shares of Common Stock issuable on the exercise of this Warrant shall forthwith
be proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination, and the Purchase Price
shall forthwith be proportionately decreased in the case of a subdivision or
stock dividend, or proportionately increased in the case of a combination. If
after the issue date hereof, the Operating Partnership shall subdivide its
outstanding Common Units (by any split, recapitalization or otherwise), or
combine its outstanding Common Units (by reserve split or otherwise), or issue
additional Common Units in payment of a distribution on the Common Units, the
number of Common Units issuable on the exercise of this Warrant shall forthwith
be proportionately increased in the case of a subdivision or distribution, or
proportionately decreased in the case of a combination, and the Purchase Price
shall forthwith be proportionately decreased in the case of a subdivision or
distribution, or proportionately increased in the case of a combination.
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12. ORGANIC CHANGE. Upon the consummation of an Organic Change (as
defined in Section 23 below), the terms of this Warrant shall be deemed
modified, without payment of any additional consideration therefor, so as to
provide that (i) upon the exercise of this Warrant following the consummation of
such Organic Change, the Holder shall have the right to acquire and receive (in
lieu of or in addition to the shares of Common Stock that would have been
acquirable and receivable in the absence of the Organic Change) such shares of
stock, securities or assets as such Holder would have received if such Holder
had exercised the Warrant immediately prior to such Organic Change, giving
effect to any adjustment of the Purchase Price made after the date of
consummation of the Organic Change. All other terms of this Warrant shall remain
in full force and effect following such an Organic Change (including its rights,
preferences and privileges relative to other capital stock). The provisions of
this Section 12 shall similarly apply to successive Organic Changes.
13. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock or fractional Common Unit (if applicable) be issued upon any exercise of
this Warrant. If, upon exercise of this Warrant, the Holder would, except as
provided in this Section 13, be entitled to receive a fractional share of Common
Stock or a fractional Common Unit, then in lieu of delivering the fractional
share therefor, the Company or the Operating Partnership, as the case may be,
shall pay an amount to the Holder equal to the Market Price of such fractional
share or unit as of date of the exercise.
14. NOTICE OF ADJUSTMENT. Whenever the number of shares of Common Stock
issuable upon exercise of this Warrant and the Purchase Price are adjusted, as
provided by Section 11, the Company shall promptly deliver to Holder a notice
setting forth the number of shares of Common Stock issuable upon exercise of
this Warrant and the Purchase Price in effect after such adjustment and the
calculations thereof.
15. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend per share which
is no greater than 120% of the size of the largest cash dividend per share paid
in the previous four (4) quarters) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any Organic Change, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such Organic Change, dissolution, liquidation or winding-up is to
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take place, and the time, if any is to be fixed, as of which the holders of
record in respect of such event are to be determined. Such notice shall be
mailed at least 10 days prior to the date specified in such notice on which any
such action is to be taken.
16. AMENDMENT. The terms of this Warrant may be amended, modified or
waived with and only with the written consent of the Company, the Operating
Partnership and the Holder.
17. REPRESENTATIONS OF HOLDER.
(a) The Holder represents and warrants that it is acquiring
this Warrant and will acquire the Warrant Shares solely for its account for
investment and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales registered or
exempted under the Act.
(b) The Holder is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the Act.
(c) Holder understands that this Warrant and any Warrant
Shares may not, under the Act, be resold, transferred or otherwise disposed of
without registration under the Act or an applicable exemption from the
registration requirements of the Act.
(d) The Holder and its advisors and representatives, if any,
have been afforded the opportunity to ask questions of the Company and the
Operating Partnership. Holder understands that its investment in this Warrant
and the Warrant Shares involves a high degree of risk. Holder has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of this Warrant and
the Warrant Shares.
(e) Holder understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of this Warrant or Warrant Shares or the fairness
or suitability of the investment in this Warrant or Warrant Shares nor have such
authorities passed upon or endorsed the merits of the offering of this Warrant
or Warrant Shares.
18. WARRANT REGISTER; TRANSFERS, ETC.
(a) The Company will maintain a register containing the names
and addresses of the registered holders of the Warrant. The Holder may change
its address as shown on the warrant register by written notice to the Secretary
of the Company at the principal executive offices of the Company requesting such
change. Any notice or written communication required or permitted to be given to
the Holder may be given by certified mail or delivered to the Holder at its
address as shown on the warrant register.
(b) Subject to compliance with applicable federal and state
securities laws by the transferor and transferee (including the delivery of
investment representation letters and legal
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opinions reasonably satisfactory to the Company, if reasonably requested by the
Company), this Warrant may be transferred by the Holder with respect to any or
all of the shares of Common Stock and/or Common Units (if applicable)
purchasable hereunder. Upon surrender of this Warrant to the Company, together
with the duly executed assignment notice substantially in the form of EXHIBIT B
attached hereto (the "ASSIGNMENT NOTICE") for transfer of this Warrant as an
entirety by the Holder and funds sufficient to pay any stock transfer taxes
payable upon the making of such transfer, the Company and the Operating
Partnership shall issue a new warrant of the same denomination to the assignee
and this Warrant shall promptly be canceled. Upon surrender of this Warrant to
the Company, together with a duly executed Assignment Notice, by the Holder for
transfer with respect to a portion of the shares of Common Stock purchasable
hereunder, the Company and the Operating Partnership shall issue a new warrant
to the assignee, in such denomination as shall be requested by the Holder
hereof, and shall issue to such Holder a new warrant covering the number of
shares in respect of which this Warrant shall not have been transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company and the Operating Partnership shall issue a new warrant
of like tenor and denomination and deliver the same (i) in exchange and
substitution for and upon surrender and cancellation of any mutilated Warrant,
or (ii) in lieu of any Warrant lost, stolen or destroyed, upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant (including a reasonably detailed affidavit with
respect to the circumstances of any loss, theft or destruction) and of indemnity
reasonably satisfactory to the Company, provided, however, that so long as an
institutional investor is the registered holder of this Warrant, no indemnity
shall be required other than its written agreement to indemnify the Company and
the Operating Partnership against any loss arising from the issuance of such new
warrant.
19. NO IMPAIRMENT. Except and to the extent waived or consented to by
the Holder in writing, the Company will not, by amendment of its Certificate of
Incorporation or By-Laws or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder, including insuring the
valid issuance by the Operating Partnership of the full number Common Units
issuable hereunder pursuant to the terms of Section 3.
20. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware.
21. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's and Operating Partnership's successors and assigns and shall inure to
the benefit of the Holder's successors, legal representatives and permitted
assigns; provided, however, that no assignment by Holder shall be effective
unless and until the Company receives a duly executed Assignment Notice.
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22. NO STOCKHOLDER OR PARTNERSHIP RIGHTS. This Warrant in and of itself
shall not entitle the Holder to any voting rights or other rights as a
stockholder of the Company or a partner of the Operating Partnership.
23. DEFINITIONS. As used in this Warrant:
"AMENDED AND RESTATED OWNERSHIP LIMIT WAIVER AGREEMENT" means
the Amended and Restated Ownership Limit Waiver Agreement, dated as of May 11,
2001, between the Company and Buyer.
"COMMON UNITS" shall have the meaning ascribed thereto in the
Operating Partner's Limited Partnership Agreement, as amended.
"CONVERSION MULTIPLE" shall have the meaning ascribed thereto
in the Operating Partner's Limited Partnership Agreement, as amended.
"MARKET PRICE" of any security means the average of the
closing prices of such security's sales on all securities exchanges on which
such security may at the time be listed, or, if thee has been no sales on any
such exchange on any day, the weighted average of the bid and asked prices on
the primary exchange on which such security is listed at the end of such day,
or, if on any day such security is not so listed the weighted average of the bid
and asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or,
if on any day such security is not quoted in the NASDAQ System, the weighted
average of the bid and asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, in each such case averaged over a period of
twenty (20) consecutive Business Days ending on the any prior to the day "Market
Price" is being determined. If at any time such security is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the counter
market, the "Market Price" will be the fair value thereof determined in good
faith by the Board of the Company or the General Partner of the Operating
Partnership, as applicable.
"ORGANIC CHANGE" means any reorganization or reclassification
of the Company which is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for shares of Common Stock.
"SERIES A-2 PREFERRED UNITS" shall have the meaning ascribed
thereto in the Operating Partner's Limited Partnership Agreement, as amended.
"TAX CONDITIONS" means (i) the Acquisition (as defined in the
Charter) and Beneficial Ownership (as defined in the Charter) of Common Stock by
Holder permitted by reason of the Ownership Limit Waiver (as defined in the
Amended and Restated Ownership Limit Waiver Agreement) shall not and is not
reasonably expected to cause the Company to be considered to own for purposes of
Section 856(d)(2)(B), applying the applicable constructive ownership rules, an
interest in any one or more tenants of the Company and its subsidiaries that
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is described in Section 856(d)(2)(B) of the Code and from which the Company
derives, in the aggregate, more than 0.5% of its gross income for any calendar
year; (ii) the Acquisition and Beneficial Ownership of Common Stock by Holder
permitted by reason of the Ownership Limit Waiver shall not and is not
reasonably expected to cause the Corporation to fail to qualify as a
"domestically-controlled REIT" within the meaning of Section 897(h)(2) of the
Code; or (iii) the Acquisition and Beneficial Ownership of Common Stock
permitted by reason of the Ownership Limit Waiver shall not and will not cause
any individual (within the meaning of Section 542(a)(2) of the Code, determined
taking into account Section 856(h)(3)(A) of the Code) to be considered to have
Beneficial Ownership of the Company's stock that violates the Ownership Limit,
as increased by the Board pursuant to Section 12.9 of the Charter).
[Remainder of Page Intentionally Left Blank;
Signature Page Immediately Follows]
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THE XXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: XXXXX X. XXXXXXXX
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Title: PRESIDENT AND CHIEF OPERATING OFFICER
--------------------------------------
THE XXXXX LIMITED PARTNERSHIP
By: THE XXXXX CORPORATION
Its: General Partner
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: XXXXX X. XXXXXXXX
--------------------------------------
Title: PRESIDENT AND CHIEF OPERATING OFFICER
--------------------------------------
[Signature Page to Amended and Restated Contingent Securities Purchase Warrant]
Exhibit A
to
Amended and Restated Contingent Securities Purchase Warrant
SUBSCRIPTION NOTICE
To: The Xxxxx Corporation Date:_________________________
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant and makes payment therefore in full of the price per
share provided by this Warrant. The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below.
The undersigned agrees that, in the absence of an effective
registration statement with respect to the Common Stock issued upon this
exercise, the undersigned is acquiring such Common Stock for investment and not
with a view to distribution thereof and that the certificate or certificates
representing such Common Stock may bear a legend substantially as follows: "The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended." The undersigned further agrees, represents
and warrants that it is an "accredited investor" within the meaning of Rule
501(a) under the Securities Act of 1933, as amended (the "Securities Act") or is
otherwise entitled to exercise the Warrant pursuant to an exemption from
registration pursuant to Section 4(2) of the Securities Act.
In order to obtain the benefits of that certain Amended and Restated
Ownership Limit Waiver Agreement dated as of May 11, 2001, in substantially the
form attached hereto as EXHIBIT 1, if desired by the undersigned, the
undersigned also will execute, and deliver along with this Subscription Notice,
a counterpart signature page to the Amended and Restated Ownership Limit Waiver
Agreement. The undersigned also hereby makes those representations and that
covenant set forth in EXHIBIT 2 to this Subscription Notice.
---------------------------------
Signature
---------------------------------
Name for Registration
Mailing Address:
---------------------------------
---------------------------------
A-1
Exhibit 1
to
Exhibit A
to
Amended and Restated Contingent Securities Purchase Warrant
COUNTERPART SIGNATURE PAGE
The undersigned Subsequent Holder (as defined in the hereinafter
mentioned Amended and Restated Ownership Limit Waiver Agreement) agrees to be
bound by the terms of that certain Amended and Restated Ownership Limit Waiver
Agreement, dated as of May 11, 2001, between The Xxxxx Corporation, a Delaware
corporation, and iStar Preferred Holdings LLC, a Delaware limited liability
company, as though the undersigned were the Buyer and has caused this Agreement
to be signed by its duly authorized officer as of the date set forth below.
[INSERT NAME OF SUBSEQUENT HOLDER]
Name:
---------------------------------------
Title:
--------------------------------------
Date:
-------------------------------------
A1-1
Exhibit 2
to
Exhibit A
to
Amended and Restated Contingent Securities Purchase Warrant
CERTIFICATE OF REPRESENTATIONS AND COVENANT
As [the Buyer/Subsequent Holder] of the Warrant issued in connection
with the Securities Purchase Agreement between The Xxxxx Corporation and iStar
Preferred Holdings LLC, dated as of April 27, 2001, the undersigned desires that
the Amended and Restated Ownership Limit Waiver Agreement between The Xxxxx
Corporation and iStar Preferred Holdings LLC, dated as of May 11, 2001 (the
"Ownership Limit Waiver Agreement"), be applicable to the Common Shares issuable
upon exercise of the Warrant to the extent provided in the Ownership Limit
Waiver Agreement. Capitalized terms used and not defined herein shall have the
meanings set forth in the Ownership Limit Waiver Agreement.
In connection therewith, the undersigned makes the following
representations effective as of the date of execution hereof:
(a) To its knowledge, based solely upon an examination of its
ownership records, the undersigned's Acquisition and
Beneficial Ownership of Common Shares permitted by reason of
the Ownership Limit Waiver shall not and will not cause any
individual (within the meaning of Section 542(a)(2) of the
Internal Revenue Code of 1986, as amended (the "Code"),
determined taking into account Section 856(h)(3)(A) of the
Code) to be considered to have Beneficial Ownership of
Company's stock that violates the Ownership Limit.
(b) For U.S. federal income tax purposes, the undersigned is
(CHOOSE ONE):
_____ (i) a United States Person within the meaning of
Section 7701(a)(30) of the Code that is not acquiring
or holding the Common Shares as nominee or agent for
any person that is not a United States Person (a
"United States Person"),
_____ (ii) a non-United States Person,
_____ (iii) a grantor trust or a disregarded entity under
the principles of Treasury Regulation Section
301.7701-3(b) treated as owned by a United States
Person, or
_____ (iv) a grantor trust or a disregarded entity under
the principles of Treasury Regulation Section
301.7701-3(b) treated as owned by a non-United States
Person.
A2-1
(c) The undersigned is acquiring the Common Shares and/or Common
Units for its own account.
The undersigned covenants to notify the Company promptly after the
undersigned obtains knowledge that any of the foregoing representations
ceases to continue to be accurate.
DATED: [BUYER/SUBSEQUENT HOLDER]
---------------
[ ]
-----------------------
Name:
--------------------------------
Title:
-------------------------------
A2-2
Exhibit B
ASSIGNMENT NOTICE
For value received ____________________________ hereby sells, assigns
and transfers unto:
-------------------------------------
-------------------------------------
-------------------------------------
(Please print or typewrite name and address of Assignee)
[the right to purchase ___ shares of Common Stock granted by] the within
Warrant, and does hereby irrevocably constitute and appoint ___________________
its attorney to transfer [that part of the within] [the within] Warrant on the
books of the within named Company and Operating Partnership with full power of
substitution on the premises.
Dated:
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(Name, address and signature of Assignor)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Warrant, without alteration or enlargement
or any change whatever.
B-1
