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EXHIBIT 4.7
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APARTMENT INVESTMENT AND MANAGEMENT COMPANY
and
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As Warrant Agent
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WARRANT AGREEMENT
Dated as of ____________, 19__
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TABLE OF CONTENTS(1)
Page
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . 4
Section 1.2 Form of Warrant Certificate . . . . . . . . . . . . . . . . 5
Section 1.3 Execution and Authentication of Warrant Certificates . . . . 5
Section 1.4 Temporary Warrant Certificates . . . . . . . . . . . . . . . 6
Section 1.5 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.6 Definition of Holder . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.2 Duration of Warrants . . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . 8
Section 2.4 Reservation of Shares . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 Call of Warrants by the Company . . . . . . . . . . . . . . 10
Section 3.2 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants . . . . . . . . . . . . 10
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(1) This Table of Contents is not a part of the Warrant Agreement.
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ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration. Exchange and Transfer of Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 15
Section 4.4 Cancellation of Warrant Certificates . . . . . . . . . . . . 16
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants or
Warrant Certificates . . . . . . . . . . . . . . . . . . . 16
Section 5.2 Holder of Warrant Certificate Mav Enforce Rights . . . . . . 16
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.2 Conditions of Warrant Agent's Obligations . . . . . . . . . 17
Section 6.3 Resignation, Removal and Assignment of Successor . . . . . . 19
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.2 Rights and Duties of Successor Corporation . . . . . . . . . 21
Section 7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 7.4 Notices and Demands to the Company and Warrant
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.5 Notices to Warrantholders . . . . . . . . . . . . . . . . . 21
Section 7.6 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.8 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . 23
Section 7.9 Obtaining of Governmental Approvals . . . . . . . . . . . . 23
Section 7.10 Persons Having Rights Under Warrant Agreement . . . . . . . 24
Section 7.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . . . 24
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Exhibit A - Form of Warrant Certificate . . . . . . . . . . . . . . . . . . A-1
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THIS WARRANT AGREEMENT, dated as of ________ 199__, between
Apartment Investment and Management Company, a corporation duly organized and
existing under the laws of the State of Maryland (the "Company") and
_____________, a [corporation] [national banking association] organized and
existing under the laws of _____________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company proposes to sell [If Offered Securities and
Warrants - [title of Offered Securities being offered] (the "Offered
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase [shares of Class
A Common Stock, par value $.01 per share (the "Class A Common Stock"),](2) of
the Company; and
WHEREAS, the Company desires the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing to so act, in connection with
the issuance, exchange, exercise and replacement of the Warrant Certificates,
and in this Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. [If Warrants
alone -- Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Securities and Warrants -- Warrant Certificates shall
be [initially] issued in units with the Offered Securities and shall [not] be
separately transferable [before ___________, 19__ (the "Detachable Date")].
Each such unit shall consist of a Warrant Certificate or Certificates
evidencing an aggregate of ___________ Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the
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(2) To be modified as appropriate to reflect underlying securities.
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provisions contained herein and therein, to purchase one share of Class A
Common Stock.
Section 1.2 Form of Warrant Certificate. The Warrant
Certificates (including the Form(s) of Exercise [and Assignment] to be set
forth on the reverse thereof) shall be in substantially the form set forth in
Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved
borders (or in any other manner determined by the officers executing such
Warrant Certificates, with the execution thereof by such officers conclusively
evidencing such determination) and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Warrant Certificates may be listed or as may, consistently herewith, be
determined by the officers executing such Warrant Certificates, with the
execution thereof by such officers conclusively evidencing such determination.
Section 1.3 Execution and Authentication of Warrant
Certificates. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman, its Chief Executive Officer, its President or one of
its Vice Presidents (any reference to a Vice President of the Company herein
shall be deemed to include any Vice President of the Company whether or not
designated by a number or a word or words added before or after the title "Vice
President"), under its corporate seal reproduced thereon attested to by its
Treasurer or Secretary or one of its Assistant Treasurers or Assistant
Secretaries. The signature of any of these officers on the Warrant Certificates
may be manual or facsimile.
Warrant Certificates evidencing the right to purchase a number of
shares of Class A Common Stock having an aggregate par value not exceeding $
_________ (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, authenticate Warrant Certificates evidencing Warrants representing the
right to purchase a number of shares of Class A Common Stock having an
aggregate par value not exceeding $________ and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall authenticate a
Warrant Certificate only if the Warrant Certificate is issued in exchange or in
substitution for one or more previously authenticated Warrant Certificates or
in connection with their transfer, as hereinafter provided.
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Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures
of individuals who were at the time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Warrant Certificates or did not hold such offices at the date of such Warrant
Certificates.
Section 1.4 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, with the execution thereof
by such officers conclusively evidencing such determination.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ________], without charge to the Holder (as
defined in Section 1.6 below). Upon surrender for cancellation of any one or
more temporary Warrant Certificates, the Company shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
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Section 1.5 Payment of Taxes. The Company will pay all stamp
taxes and other duties, if any, to which, under the laws of the United States
of America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.6 Definition of Holder. The term "Holder" as used
herein shall mean [If Offered Securities and Warrants which are not immediately
detachable -- prior to the Detachable Date, the registered owner of the Offered
Security to which such Warrant Certificate was initially attached, and, after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4. 1. [If Offered Securities and
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Securities to,
make available to the Warrant Agent current information as to Holders of the
Offered Securities.]
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ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price.(3) During the period set forth in
Section 2.2, each Warrant shall entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase from the Company one share of Class A
Common Stock at the exercise price of $ __________. Such exercise price of each
Warrant is referred to in this Agreement as the "Exercise Price."
Section 2.2 Duration of Warrants. Any Warrant evidenced by a
Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [________, 19__] and at or before the close of
business on _________ 19 (the "Expiration Date"). Each Warrant not exercised
at or before the close of business on the Expiration Date shall become void,
and all rights of the Holder of the Warrant Certificate evidencing such Warrant
under this Agreement or otherwise shall cease.
Section 2.3 Exercise of Warrants. (a) During the period
specified in Section 2.2, any whole number of Warrants may be exercised by
surrendering the Warrant Certificate evidencing such Warrants at the place or
at the places set forth in the Warrant Certificate, with the purchase form set
forth in the Warrant Certificate duly executed, accompanied by payment in full,
in lawful money of the United States of America, [in cash or by certified check
or official bank check in New York Clearing House funds] [by bank wire transfer
in immediately available funds,] of the Exercise Price for each Warrant
exercised. The date on which payment in full of the Exercise Price for a
Warrant and the duly executed and completed Warrant Certificate are received by
the Warrant Agent shall be deemed to be the date on which such Warrant is
exercised. The Warrant Agent shall deposit all funds received by it as payment
for the exercise of Warrants to the account of the Company maintained with it
for such purpose and shall advise the Company by telephone at the end of each
day on which such a payment is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephonic advice to the
Company in writing.
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(3) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
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(b) The Warrant Agent shall from time to time, as
promptly as practicable after the exercise of any Warrants in accordance with
the terms and conditions of this Agreement and the Warrant Certificates, advise
the Company of (i) the number of Warrants so exercised, (ii) the instructions
of each Holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the certificate or certificates representing shares of
Class A Common Stock to which such Holder is entitled upon such exercise, and
instructions of such Holder as to delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iii)
such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue to or upon the order of the Holder of the
Warrant Certificate evidencing such Warrants, a certificate or certificates
representing the number of shares of Class A Common Stock to which such Holder
is entitled in such name or names as may be directed by such Holder; and, if
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute and an authorized officer of the Warrant
Agent shall manually authenticate and deliver a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Class A Common Stock; and in the
event that any such transfer is involved, the Company shall not be required to
issue or deliver any shares of Class A Common Stock until such tax or other
charge shall have been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Section 2.4 Reservation of Shares. For the purpose of enabling
it to satisfy any obligation to issue shares of Class A Common Stock upon
exercise of Warrants, the Company will, at all times through the close of
business on the Expiration Date, reserve and keep available, free from
preemptive rights and out of its aggregate authorized but unissued shares of
Class A Common Stock, the number of shares of Class A Common Stock deliverable
upon the exercise of all outstanding Warrants.
The Company covenants that all shares of Class A Common Stock
issued upon exercise of the Warrants will, upon issuance in accordance with the
terms of this Agreement, be fully paid and nonassessable and free from all
taxes, liens,
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charges and security interests created by or imposed upon the Company with
respect to the issuance and holding thereof.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Company.(4) If Warrants
issued hereunder are callable by the Company -- The Company shall have the
right to call and repurchase any or all Warrants on or after ________, 19__
(the "Call Date") and upon the occurrence of [discuss events or circumstances
under which Company may call the Warrants] (the "Call Terms") at a price of $
_________ per Warrant (the "Call Price"). Notice of such Call Price, Call Date
and Call Terms shall be given to registered holders of Warrants in the manner
provided in Section 7.5.]
Section 3.2 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of shares of
Class A Common Stock purchasable upon the exercise of each Warrant and the
number of Warrants outstanding are subject to adjustment from time to time upon
the occurrence of the events enumerated in this Section 3.2.
(a) If the Company shall (i) pay a dividend in or make a
distribution of shares of its capital stock, whether shares of Class A Common
Stock or shares of its capital stock of any other class, (ii) subdivide its
outstanding shares of Class A Common Stock, (iii) combine its outstanding
shares of Class A Common Stock into a smaller number of shares of Class A
Common Stock or (iv) issue any shares of its capital stock in a reclas-
sification of the Class A Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation), the number of shares of Class A Common Stock
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of shares of Class A Common Stock or other securities of the
Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective
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(4) Complete and modify the provision of the Section as appropriate to
reflect the exact terms of the Warrants.
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immediately after the effective date of such event, retroactive to immediately
after the record date, if any, for such event.
(b) If the Company shall issue rights, options or
warrants to all holders of its outstanding Class A Common Stock, without any
charge to such holders, entitling them to subscribe for or purchase shares of
Class A Common Stock at a price per share that is lower than the market price
per share of Class A Common Stock (as defined in paragraph (e) below) at the
record date mentioned below, the number of shares of Class A Common Stock
thereafter purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of shares of Class A Common Stock theretofore
purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be (i) the number of shares of Class A Common Stock outstanding on the
date of issuance of such rights, options or warrants plus the number of
additional shares of Class A Common Stock offered for subscription or purchase,
and of which the denominator shall be (ii) the number of shares of Class A
Common Stock outstanding on the date of issuance of such rights, options or
warrants plus the number of shares which the aggregate offering price of the
total number of shares of Class A Common Stock so offered would purchase at the
market price per share of Class A Common Stock at such record date. Such
adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective retroactive to immediately after the record date for
the determination of stockholders entitled to receive such rights, options or
warrants.
(c) If the Company shall distribute to all holders of its
shares of Class A Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of capital surplus and
dividends or distributions referred to in paragraph (a) above) or rights,
options or warrants or convertible or exchangeable securities containing the
right to subscribe for or purchase shares of Class A Common Stock (excluding
those referred to in paragraph (b) above), then in each case the number of
shares of Class A Common Stock thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of shares of Class A
Common Stock theretofore purchasable upon the exercise of each Warrant, by a
fraction, of which the numerator shall be (i) the then current market price per
share of Class A Common Stock (as defined in paragraph (e) below) on the date
of such distribution, and of which the denominator shall be (ii) the then
current market price per share of Class A Common Stock less the then fair value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of the assets or evidences of indebtedness
so distributed or of such subscription rights, options or warrants or
convertible or exchangeable securities applicable to one share of Class A
Common Stock. Such adjustment shall be
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made whenever any such distribution is made, and shall become effective on the
date of distribution retroactive to immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(d) In the event of any capital reorganization or any
reclassification of the Class A Common Stock (except as provided in paragraphs
(a) through (c) above), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Class A Common Stock to which he or she
would have become entitled upon exercise immediately prior to such reorgani-
zation or reclassification, the shares (of any class or classes) or other
securities or property of the Company that he or she would have been entitled
to receive at the same aggregate Exercise Price upon such reorganization or
reclassification if his or her Warrants had been exercised immediately prior
thereto.
(e) For the purpose of any computation under paragraphs
(b) and (c) of this Section 3.02, the current or closing market price per share
of Class A Common Stock at any date shall be deemed to be the average of the
daily closing prices for ___ consecutive trading days commencing __________
trading days before the date of such computation. The closing price for each
day shall be [the last sale price] for such day, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange (the
"NYSE") or if the Class A Common Stock is not listed on the NYSE, then on the
principal United States national securities exchange on which the Class A
Common Stock is listed or quoted. If the Class A Common Stock is not listed or
quoted on any United States national securities exchange, then the current or
closing market price per share of Class A Common Stock shall be determined by
the Board of Directors of the Company in good faith.
(f) Whenever the number of shares of Class A Common Stock
purchasable upon the exercise of each Warrant is adjusted as herein provided,
the Exercise Price payable upon the exercise of each Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of shares purchasable upon
the exercise of each Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares so purchasable immediately
thereafter.
(g) The Company may elect, on or after the date of any
adjustment required by paragraphs (a) through (d) of this Section 3.2, to
adjust the number of Warrants in substitution for an adjustment in the number
of shares of Class A Common Stock purchasable upon the exercise of a Warrant.
Each of the Warrants
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outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of shares of Class A Common Stock as
immediately prior to such adjustment. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price
in effect prior to adjustment of the Exercise Price by the Exercise Price in
effect after adjustment of the Exercise Price. The Company shall notify the
holders of Warrants, in the same manner as provided in the first paragraph of
Section 7.5, of its election to adjust the number of Warrants, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Exercise
Price is adjusted or any day thereafter. Upon each adjustment of the number of
Warrants pursuant to this paragraph (g) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrants on such
record date Warrant Certificates evidencing, subject to paragraph (h), the
additional Warrants to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1 (and which may bear, at the option of the Company, the
adjusted Exercise Price) and shall be registered in the names of the holders of
record of Warrant Certificates on the record date specified in the notice.
(h) The Company shall not be required to issue fractions
of Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to paragraph (g) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants, there shall be paid
to the registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant on the trading day
immediately prior to the date on which such fractional Warrant could have been
other wise issuable (the "Valuation Date"). For purposes of this paragraph (h),
the current market value of a Warrant shall be the aggregate closing market
price on the Valuation Date (determined as set forth in paragraph (e)) of all
shares of Class A Common Stock issuable upon exercise of one Warrant plus the
fair value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of any other assets or securities
purchasable upon exercise of one Warrant less the Exercise Price of one
Warrant.
(i) Notwithstanding any adjustment pursuant to Section
3.2 in the number of shares of Class A Common Stock purchasable upon the
exercise of a
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Warrant, the Company shall not be required to issue fractions of shares of
Class A Common Stock upon exercise of the Warrants or to distribute
certificates which evidence fractional shares. In lieu of fractional shares,
there shall be paid to the registered holders of Warrant Certificates at the
time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of Class
A Common Stock. For purposes of this paragraph (i), the current market value of
a share of Class A Common Stock shall be the closing market price (determined
as set forth in paragraph (e)) of a share of Class A Common Stock for the
trading day immediately prior to the date of such exercise.
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant
Certificates. The Warrant Agent shall keep, at its corporate trust office [and
at _________], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and transfers of outstanding
Warrant Certificates.
[If Offered Securities and Warrants which are immediately
detachable -- Prior to the Detachable Date, a Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which such
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered
Security. Additionally, on or prior to the Detachable Date, each transfer or
exchange of an Offered Security [on the register of the Offered Securities]
shall operate also to transfer or exchange the Warrant Certificate or
Certificates to which such Offered Security was initially attached. After the
Detachable Date, upon] [If Offered Securities and Warrants which are immedi-
ately detachable or if Warrants alone -- Upon] surrender at the corporate trust
office of the Warrant Agent [or __________] of Warrant Certificates properly
endorsed [or accompanied by appropriate instruments of transfer] and
accompanied by written instructions for [transfer or] exchange, all in form
satisfactory to the Company and the Warrant Agent, such Warrant Certificates
may be exchanged for other Warrant Certificates or may be transferred in whole
or in part; provided that Warrant Certificates issued in exchange for [or upon
transfer of] surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service
charge shall be made for any exchange [or transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or governmental charge that may be imposed in connection
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with any such exchange [or transfer]. Whenever any Warrant Certificates are so
surrendered for exchange [or transfer], the Company shall execute and an
authorized officer of the Warrant Agent shall manually authenticate and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates as so requested. The Warrant Agent shall not be required to effect
any exchange [or transfer] which would result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange [or
transfer] of Warrant Certificates shall evidence the same obligations, and be
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or transfer].
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) connected therewith.
Every new Warrant Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Warrant Certificate shall evidence an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the re-
placement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 4.3 Persons Deemed Owners. [If Offered Securities and
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the
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Company, the Warrant Agent and all other persons may treat the owner of any
Offered Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date, and] Prior to due
presentment of a Warrant Certificate for registration of transfer, the Company,
the Warrant Agent and all other persons may treat the Holder as the owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.4 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange[, transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by it and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall
be issued hereunder in lieu or in exchange thereof. The Company may at any time
deliver to the Warrant Agent for cancellation any Warrant Certificates
previously issued hereunder which the Company may have acquired in any manner
whatsoever, and all Warrant Certificates so delivered shall be promptly
cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the
Warrant Agent shall be destroyed by it unless by written order the Company
requests their return to it.
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to receive dividends.
Section 5.2 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, any stockholder
or the Holder of any other Warrant Certificate, may, on its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect of
its right to exercise the
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Warrant or Warrants evidenced by his or her Warrant Certificate in the manner
provided in the Warrant Certificates and in this Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent. The Company hereby appoints
____________ as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth, and ___________ hereby accepts such appointment. The Warrant Agent shall
have the power and authority granted to and conferred upon it in the Warrant
Certificates hereby and such further power and authority to act on behalf of
the Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such power and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 6.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as such Warrant Agent
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
at any time of its powers or duties hereunder. The obligations of the Company
under this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship
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of agency or trust for or with any of the owners or holders of the Warrant
Certificates.
(c) Counsel. The Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or omitted by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it would have
if it were not such Warrant Agent, officer, director, employee or other agent,
and, to the extent permitted by applicable law, it may engage or be interested
in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
securities or other obligations of the Company as freely as if it were not such
Warrant Agent, officer, director, employee or other agent.
(f) No Liability for Interest. The Warrant Agent shall
not be under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Warrant Agent and except for the negligence of the Warrant Agent.
(g) No Liability for Invalidity. The Warrant Agent shall
not incur any liability with respect to the validity of this Agreement or any
of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the Recitals or representations
contained herein or in the Warrant Certificates (except as to the Warrant
Agent's Certificate of Authentication thereon), all of which are made solely by
the Company.
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(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability,~the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates
or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a Holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 7.4 hereof, to make any demand upon the Company.
Section 6.3 Resignation Removal and Assignment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be less
than three months after the date on which such notice is given. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Warrant Agent and the acceptance of such appointment by
such successor Warrant Agent pursuant to Section 6.3(d).
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(c) In case at any time the Warrant Agent shall resign,
or be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the latter of such appointment, the Warrant Agent so superseded shall cease
to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and obliga-
tions of such predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Warrant Agent, provided that it shall be qualified as afore-
said, shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and Sales
Leases and Conveyances Permitted Subject to Certain Conditions. The Company
may consolidate with, or sell or convey all or substantially all of its assets
to, or merge with or into any other corporation, provided that in any such
case, either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or into
which the Company is merged or the corporation which acquired by purchase or
conveyance all or substantially all of the assets of the Company shall
expressly assume the obligations of the Company hereunder.
Section 7.2 Rights and Duties of Successor Corporation. In case
of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the shares of Class A Common Stock issuable pursuant to the terms hereof.
Section 7.3 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or supplementing
any defective provision contained herein, or making such provisions in regard
to matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect
the interests of the Holders of the Warrant Certificates in any material
respect. Any amendment or supplement to this Agreement or the Warrants that has
a material adverse effect on the interests of Holders of any series of Warrants
shall require the written consent of the Holders of a majority of the then
outstanding Warrants of such series. The consent of each Holder of a Warrant
affected shall be required for any amendment pursuant to which the Warrant
Price would be increased or the number of shares of Class A Common Stock
purchasable upon exercise of Warrants would be decreased. The Warrant Agent
may, but shall not be obligated to, enter into any amendment to this Agreement
which affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise.
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Section 7.4 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 7.5 Notices to Warrantholders. Upon any adjustment of
the number of shares purchasable upon exercise of each Warrant, the Exercise
Price or the number of Warrants outstanding pursuant to Section 3.2, the
Company within ________ calendar days thereafter shall (i) cause to be filed
with the Warrant Agent a certificate of a firm of independent public
accountants of recognized standing selected by the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price and either
the number of shares of Class A Common Stock and other securities or assets
purchasable upon exercise of each Warrant or the additional number of Warrants
to be issued for each previously outstanding Warrant, as the case may be, after
such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such adjustment are made, which
certificate shall be conclusive evidence of the correctness of the matters set
forth therein, and (ii) cause to be given to each of the registered holders of
the Warrant Certificates at such holder's address appearing on the Warrant
Register written notice of such adjustments by first-class mail, postage
prepaid. Where appropriate, such notice may be given in advance and included as
part of the notice required to be mailed under the provisions of this Section
7.5.
Pursuant to Sections 3. 1 [add other sections as applicable], the
Company shall cause written notice of such Call Price, Call Date and Call Terms
[reference other items as applicable], as the case may be, to be given as soon
as practicable to the Warrant Agent and to each of the registered holders of
the Warrant Certificates by first class mail, postage prepaid, at such holder's
address appearing on the Warrant Register. In addition to the written notice
referred to in the preceding sentence, the Company shall make a public
announcement in a daily morning newspaper of general circulation in ___________
of such Call Price, Call Date, and Call Terms [reference other items as
applicable], as the case may be, at least once a week for two successive weeks
prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Class A Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Class A Common
Stock; or
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(b) the Company shall offer to the holders of its shares
of Class A Common Stock any additional shares of Class A Common Stock or
securities convertible into shares of Class A Common Stock or any right to
subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding
up of the Company (other than in connection with a consolidation, merger, or
sale of all or substantially all of its property, assets, and business as an
entirety);
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first-class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in ___________________ of such event, such giving of notice and
publication to be completed at least _________ calendar days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution, or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 7.5 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
Section 7.6 Addresses. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
_______________ Attention: ________________, and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Apartment Investment and Management Company, 0000 Xxxxx Xxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Secretary (or such
other address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 7.7 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 7.8 Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Class A Common Stock (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant Certificate, the
Warrant Agent will deliver to the
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person designated to receive a certificate representing shares of Class A
Common Stock, prior to or concurrently with the delivery of such Securities, a
Prospectus.
Section 7.9 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and state laws (including, without limitation, to the extent required,
the maintenance of the effectiveness of a registration statement in respect of
the Class A Common Stock under the Securities Act of 1933, as amended), which
may be or become required in connection with exercise of the Warrant
Certificates and the original issuance and delivery of the Class A Common
Stock.
Section 7.10 Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions herein is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements contained in this Agreement shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 7.11 Headings. The Article and Section headings herein
and the Table of Contents are for convenience of reference only and shall not
affect the construction hereof.
Section 7.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 7.13 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent [and at ___________] for inspection by the Holder
of any Warrant Certificate. The Warrant Agent may require such Holder to submit
its Warrant Certificate for inspection by it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seal to be hereunto affixed
and attested, all as of the day and year first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
--------------------------
[SEAL]
Attest:
----------------------------
[Assistant] Secretary
[SEAL]
Attest:
[Assistant] Secretary
[NAME OF WARRANT AGENT]
By:
--------------------------
[SEAL]
Attest:
----------------------------
[Assistant] Secretary
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if Offered Securities [Prior to _____________, this
with Warrants which are not imme- Warrant Certificate may be
diately detachable transferred or ex- changed if
and only if the [Title of
Security] to which it was
initially attached is so
transferred or exchanged.]
Form of Legend if Warrants are not [Prior to ________________,
Warrants immediately exercisable Warrants evidenced by this
Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, 199_
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
Warrant Certificate representing
Warrants to purchase
Class A Common Stock
as described herein.
No. _________ Warrants
This certifies that ____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on __________ 19__, and on or before the close of business on
_________, 19__ one share of Class
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A Common Stock, par value $.01 per share ("Class A Common Stock") of Apartment
Investment and Management Company (the "Company"), on the following basis.(1)
During such period, each Warrant shall entitle the Holder thereof, subject to
the provisions of the Warrant Agreement (as defined below), to purchase from
the Company one share of Class A Common Stock at the exercise price of $
________ (the "Exercise Price"). The Holder of this Warrant Certificate may
exercise the Warrants evidenced hereby, in whole or in part, by surrendering
this Warrant Certificate, with the purchase form set forth hereon duly
completed, accompanied by payment in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds],
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor, as warrant agent (the "Warrant Agent") [or at ________], the
addresses specified on the reverse hereof and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement.
The term "Holder" as used herein shall mean [If Offered Debt
Securities with Warrants which are not immediately detachable -- prior to
_________ 19__ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date,] the person in whose name at the time
such Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 4. 1 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase shares of Class A Common Stock. Upon
any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the registered owner hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement dated as of ________, 19 (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant
--------------------
(1) Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants.
A-2
29
Agreement are on file at the above-mentioned office of the Warrant Agent [and
at ________].
[If Offered Securities with Warrants which are not immediately
detachable--prior to _________, 19__ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate
was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Security on the register of the Offered Securities shall operate also to
transfer this Warrant Certificate. After the Detachable Date, this] [If Offered
Debt Securities with Warrants which are immediately detachable or Warrants
alone--This] Warrant Certificate and all rights hereunder, may be transferred
when surrendered at the corporate trust office of the Warrant Agent [or
_________] by the registered owner or his assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable--Except as provided in the immediately preceding paragraph, after]
[If Offered Debt Securities with Warrants which are immediately detachable or
Warrants alone-After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
_________________________] for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner
hereof to any of the rights of a stockholder, including, without limitation,
the right to receive dividends.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any
purpose until authenticated by the Warrant Agent.
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30
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated:
--------------------
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
------------------------------
Attest:
---------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
---------------------------------
As Warrant Agent
By:
------------------------------
Authorized Signature
A-4
31
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay [in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _______________ Corporate Trust Department, ____________,
Attn: [or ____________], which payment should specify the name of the Holder of
this Warrant Certificate and the number of Warrants exercised by such Holder.
In addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase _________ shares of Class
A Common Stock, par value $.01 per share ("Class A Common Stock"), of Apartment
Investment and Management Company and represents that he or she has tendered
payment for such shares of Class A Common Stock [in cash or by certified check
or official bank check in New York Clearing House funds or by bank wire
transfer in immediately available funds] to the order of Apartment Investment
and Management Company, c/o Treasurer, in the amount of $________ in accordance
with the terms hereof. The undersigned requests that said shares of Class A
Common Stock be registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If said number of shares of Class A Common Stock is less than all
of the shares of Class A Common Stock purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
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32
Dated:
Name
-----------------------------------
(Please Print)
-----------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
Address
--------------------------------
---------------------------------------
---------------------------------------
Signature (Signature must conform in all respects to name of holder as
specified on the face of this Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member broker of the New York, Chicago or
Pacific Stock Exchange.)
This Warrant may be exercised at the following addresses:
By Hand at
-----------------------------------
---------------------------------------
---------------------------------------
By mail at
-----------------------------------
---------------------------------------
---------------------------------------
(Instructions as to form and delivery of
certificates representing shares of Class A Common Stock
and/or Warrant Certificates):
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33
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _______________________________ hereby sells,
assigns and transfers unto
---------------------------------------
Please print name and address
(including zip code)
Please insert social security or
other identifying number
---------------------------------
---------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
------------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust company
or member broker of the New York, Chicago or
Pacific Stock Exchange.)
Signature Guaranteed:
---------------------------------
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