WARRANT AGREEMENT
This WARRANT AGREEMENT is made and entered into as of May 28, 1999 by
and between Wellsford Real Properties, Inc., a Maryland corporation (together
with its successors and permitted assigns, the "Company"), and United States
Trust Company of New York (together with its successors and permitted assigns,
the "Warrant Agent").
R E C I T A L S
WHEREAS, W/W Group Holdings, L.L.C., a Delaware limited liability
company ("Holding Co."), WHWEL Real Estate Limited Partnership, a Delaware
limited partnership ("WHWEL"), WXI/WWG Realty, L.L.C., a Delaware limited
liability company, Wellsford Commercial Properties Trust, a Maryland real estate
investment trust ("WCPT"), and other parties have agreed to form, and contribute
certain assets to, Wellsford/Whitehall Group, L.L.C., a Delaware limited
liability company ("Wellsford/Whitehall Group"), subject to the concurrent
issuance by the Company to WHWEL of one hundred fifty thousand (150,000)
warrants to purchase shares of the Company's Common Stock;
WHEREAS, WHWEL has directed the Company to issue such 150,000 warrants
to Holding Co.; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is so willing to act, in connection with the
issuance, transfer or exercise of Warrants and other matters as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
"Affiliate" of any Person shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Warrant Agreement, as it may be amended or
modified from time to time.
"Articles of Incorporation" shall mean the Company's Articles of
Amendment and Restatement, as amended from time to time.
"Business Day" shall mean any day other than a Saturday, Sunday or any
other day on which banks in New York are authorized or required to close.
"Cash Amount" shall mean, with respect to any Warrant, an amount of
cash equal to the product of (i) the Closing Price of the Common Stock as of the
date of exercise of such Warrant multiplied by (ii) the Shares Amount in effect
on such date.
"Close of Business" shall mean, for any day, 5:00 P.M., New York City
time, on such date.
"Closing Price" shall mean the last reported sale price regular way on
the day in question or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices regular way of the Common
Stock, in each case on the American Stock Exchange ("AMEX"), or, if the Common
Stock is not listed or admitted to trading on the AMEX, on the principal
national securities exchange or quotation system on which the Common Stock is
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of the Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similarly generally accepted reporting
service, or, if not so available in such manner, as furnished by any AMEX member
firm selected from time to time by the board of directors of the Company for the
purpose. In the case of a closing price of Common Stock on the AMEX, such price
shall mean the closing price reported in the AMEX composite transactions
reporting system (as reported in the New York City edition of The Wall Street
Journal or, if not so reported, another authoritative source).
"Common Stock" shall mean the common stock, par value $.01 per share,
of the Company and any other stock of the Company into which such common stock
may be converted or reclassified (other than stock of the Company into which
unissued Common Stock has been reclassified) or that may be issued in respect
of, in exchange for, or in substitution of, such common stock by reason of any
stock splits, stock dividends, distributions, mergers, consolidations,
recapitalizations or other like events. For purposes of Section 6.1, the term
"Common Stock" shall include the Class A common stock, $.01 par value per share,
of the Company.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"current market price" shall have the meaning set forth in Section
6.1(a)(vii).
"Deemed Value Per Membership Unit" shall have the meaning set forth in
Section 1 of the Wellsford/Whitehall Group LLC Agreement.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exercise Price" shall have the meaning set forth in Section 3.1(b).
"Expiration Date" shall mean the fifth anniversary of the date of this
Agreement, provided that if such date is not a Business Day, the next Business
Day thereafter.
"Holders" shall mean, collectively, the holders from time to time of
Warrant Certificates and "Holder" shall mean any such holder.
"Holding Co." shall have the meaning set forth in the second paragraph
of this Agreement.
"Initial Holder" shall mean Holding Co.
"Membership Unit" shall have the meaning set forth in the
Wellsford/Whitehall Group LLC Agreement.
"Partial Spin-Off" shall have the meaning set forth in Section
6.1(a)(iv).
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of May ___, 1999, between the Company and the Initial
Holder, as such agreement may be amended or modified from time to time .
"SEC" shall mean the Securities and Exchange Commission.
"SEC Reports" shall mean the annual and quarterly reports and the
information, documents, and other reports that the Company is required to file
with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares Amount" shall mean, with respect to any Warrant, 0.826446
shares of Common Stock, subject to all adjustments made pursuant to Article 6
hereof on or prior to the date of exercise of such Warrant.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock are listed or admitted
to trading is open for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national securities exchange,
any Business Day.
"Transfer Agent" shall have the meaning set forth in Section 11.1.
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"Underlying Common Stock" shall mean all shares of Common Stock either
issuable upon the exercise of the Warrants or previously issued upon the prior
exercise of the Warrants.
"Warrants" shall mean the warrants issued by the Company on the date
hereof pursuant to this Agreement, and any additional warrants issued in
accordance with this Agreement.
"Warrant Certificates" shall mean the certificates substantially in the
form of Exhibit A evidencing the Warrants.
"Warrant Agent" shall have the meaning set forth in the first paragraph
of this Agreement.
"WCPT" shall have the meaning set forth in the second paragraph of this
Agreement.
"Wellsford/Whitehall Group" shall mean the meaning set forth in the
second paragraph of this Agreement.
"Wellsford/Whitehall Group LLC Agreement" shall mean the limited
liability company agreement of Wellsford/Whitehall Group dated as of May, ___
1999, as such agreement may be amended or modified from time to time.
Certain terms used principally in Article 6 are defined in that
Section.
ARTICLE 2
ORIGINAL ISSUE OF WARRANTS
Section 2.1. Form of Warrant Certificates. Warrant Certificates shall
be in registered form only, substantially in the form attached hereto as Exhibit
A and dated the date on which countersigned by the Warrant Agent.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, which will be substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and which are not required to be countersigned by the Warrant Agent.
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 the
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Initial Holder. 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 2.2. Execution and Delivery of Warrant Certificates.
(a) Simultaneously with the execution of this Agreement, Warrant
Certificates evidencing one hundred fifty thousand (150,000) Warrants, shall be
executed on behalf of the Company as provided in paragraph (b) below and
delivered to the Warrant Agent for countersignature and the Warrant Agent shall
thereupon countersign and deliver such Warrant Certificates to Whitehall. In
addition, the Warrant Agent is irrevocably authorized to countersign and deliver
Warrant Certificates as required by Sections 3.1(e), 5.1 and 5.2.
(b) Warrant Certificates shall be executed on behalf of the Company by
its Chairman, Chief Executive Officer or President, either manually or by
facsimile signature printed thereon. Warrant Certificates shall be countersigned
by the Warrant Agent, either manually or by facsimile signature printed
thereupon, and shall not be valid for any purpose unless so countersigned. In
case any officer of the Company whose signature shall have been placed upon any
Warrant Certificate shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent
and issued and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company.
ARTICLE 3
EXERCISE OF WARRANTS
Section 3.1. Exercise Procedures.
(a) Each Warrant shall be exercisable as provided in this
Section 3 from time to time on any Business Day prior to the Close of Business
on the Expiration Date.
(b) When exercised in accordance with subparagraph (c) below, each
Warrant shall entitle the Holder to purchase, and the Company shall be required
to deliver, a number of shares of Common Stock equal to the Shares Amount in
effect on the day such Warrant is exercised in accordance with Section 3.1(c),
at an exercise price (the "Exercise Price") of, at the sole election of the
Holder, either (x) a number of Membership Unit(s) equal to the quotient (rounded
to the nearest one ten-thousandth (0.0001)) of (i) $10.00 divided by (ii) the
Deemed Value Per Membership Unit or (y) $10.00 in cash; provided, however, that
the Company may, at its sole election, pay to the Holder of each Warrant so
exercised in respect of any one or more of such Warrants cash in an amount equal
to the Cash Amount in lieu of delivering the shares of Common Stock. When
multiple Warrants are exercised, the Exercise Price may consist of cash,
Membership Units or any combination thereof. For the avoidance of doubt, the
Holder may procure Membership Units for the payment of the Exercise Price from
its Affiliates or other third-parties. Notwithstanding the foregoing, the Holder
may not elect to deliver Membership Units as the Exercise Price upon the
exercise of any Warrant before August 28, 1999.
(c) In order to exercise a Warrant, the Holder must surrender the
Warrant Certificate evidencing such Warrant to the Warrant Agent, with the form
of election on the reverse of or attached to the Warrant Certificate duly
executed, together with any required payment or delivery,
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as the case may be, of the Exercise Price, to the Warrant Agent at the principal
office of the Warrant Agent in New York, New York. In the event Holder elects to
tender Membership Units as provided in subparagraph (b) above, all such
Membership Units (and the corresponding Interest (as defined in
Wellsford/Whitehall Group LLC Agreement)) shall be assigned by the Warrant Agent
to the Company. In the event a Holder elects to pay the cash Exercise Price as
provided in subparagraph (b) above, such Holder shall transfer to the Warrant
Agent, together with the surrendered Warrant Certificate, the required payment
in full of the Exercise Price for each Warrant which is exercised. Any such
payment of the Exercise Price shall be by certified or official bank check or
wire transfer of same day funds, and such funds shall be deposited by the
Warrant Agent for the account of the Company, unless otherwise instructed in
writing by the Company.
(d) Upon surrender of a Warrant Certificate in conformity with the
foregoing, the Warrant Agent shall thereupon promptly notify the Company. In the
event the Company elects to deliver the Shares Amount as provided in
subparagraph (b) above, the Company shall transfer to the Holder of the
exercised Warrant share certificates representing the shares of Common Stock to
which such Holder is entitled and the Holder shall be deemed to own and have all
the rights associated with any shares of Common Stock to which it is entitled
pursuant to this Agreement upon the surrender of any Warrant Certificate in
accordance with this Section 3.1. If the Company elects to deliver the Cash
Amount as provided in subparagraph (b) above, the Company shall deliver to the
Holder of the exercised Warrant payment of the Cash Amount in same day funds to
the account specified on the form of election on the reverse of or attached to
the Warrant Certificate. The Holder acknowledges that the Company does not
currently intend to issue Common Stock equal to 20% or more of its currently
outstanding Common Stock upon the exercise of any Warrants and, in the event of
such an exercise that could result in Common Stock being issued in excess of
such limit, the Company will instead deliver the Cash Amount.
(e) If fewer than all the Warrants represented by a Warrant Certificate
are exercised, such Warrant Certificate shall be surrendered by the Warrant
Agent to the Company with instructions for the issuance of a new Warrant
Certificate and the Company shall promptly execute such new Warrant Certificate
for the Warrants that were not exercised and deliver the same to the Warrant
Agent. The Warrant Agent shall promptly countersign the new Warrant Certificate,
register it and deliver it to the registered Holder thereof.
ARTICLE 4
COMPLIANCE WITH THE SECURITIES ACT
Section 4.1. Transfers. The Initial Holder hereby acknowledges that the
Warrants and the shares of Common Stock which may be received by the Initial
Holder upon exercise of any Warrant are and will be subject to certain
restrictions on transfers under the Securities Act and the regulations
promulgated thereunder.
Section 4.2. Representations. The Initial Holder has been afforded full
and complete access to all information and other materials relating to the
Company and to the offer of the Warrants and has had the opportunity to have
answered any questions it had concerning the Company and the offering of the
Warrants.
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The Initial Holder hereby represents that it is acquiring the
Warrants for its own account for investment and not with a view to the resale or
distribution of any interest therein.
ARTICLE 5
REGISTRATION OF TRANSFERS AND EXCHANGES
Section 5.1. Generally. The Warrant Certificates shall be issued in
registered form only. The Company shall cause to be kept at the office of the
Warrant Agent a register in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of the transfers
or exchanges of the Warrant Certificates as herein provided.
The Warrant Agent shall from time to time register the transfer or
exchange of any outstanding Warrant, in the records to be maintained by it for
that purpose, upon surrender of such Warrant. Upon any such registration of
transfer or exchange, a new Warrant Certificate shall be issued to the
transferee in the case of a transfer or to the Holder making the exchange, and
the surrendered Warrant Certificate shall be canceled by the Warrant Agent.
Canceled Warrant Certificates shall be disposed of by the Warrant Agent in
accordance with its customary procedures and the Warrant Agent shall deliver a
certificate of their destruction to the Company.
All Warrant Certificates issued upon any registration of
transfer or exchange shall be valid obligations of the Company, evidencing the
same obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such registration of transfer or exchange.
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
contained in Exhibit B hereto or such other form satisfactory to the Company and
the Warrant Agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange of the Warrant Certificates. The Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of the Warrant Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and when any Warrant Certificate shall have been so endorsed, the
Holder thereof may be treated by the Company, the Warrant Agent and all other
persons dealing therewith as the absolute owner thereof for any purpose and as
the Person entitled to either exercise the rights represented thereby or to
transfer the Warrants represented thereby on the register of the Company
maintained by the Warrant Agent, any notice to the contrary withstanding; but
until such transfer on such register, the Company and the Warrant Agent may
treat the registered Holder thereof as the owner for all purposes.
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Section 5.2. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent or the
Company, or if the Warrant Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered to
the Company and the Warrant Agent such security or indemnity as may be
reasonably required by them to save each 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
written request the Warrant Agent shall countersign and deliver, in exchange for
any such mutilated Warrant Certificate, or in lieu of any such destroyed, lost
or stolen Warrant Certificate, a new Warrant Certificate of like tenor and for a
like aggregate number of Warrants. Upon the issuance of any new Warrant
Certificate under this Section 5.2, 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 other expenses (including the reasonable fees and expenses
of the Warrant Agent) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 5.2 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
as provided herein, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 5.2 are
exclusive and shall preclude (to the extent lawful) all other rights or remedies
with respect to the replacement of mutilated, destroyed, lost or stolen Warrant
Certificates.
ARTICLE 6
ADJUSTMENTS
Section 6.1. Adjustment upon Certain Transactions.
(a) The Shares Amount (and, by virtue thereof, the Cash Amount) shall
be subject to adjustment from time to time as follows:
(i) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in Common Stock or shall pay
or make a dividend or other distribution on any other class or series of
stock of the Company which dividend or distribution includes Common Stock,
the Shares Amount in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by
multiplying such Shares Amount by a fraction of which the denominator shall
be the number of shares of Common Stock outstanding at the Close of
Business on the date fixed for such determination and the numerator shall
be the sum of such number of shares plus the total number of shares
constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this
subparagraph (i), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company.
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The Company shall not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.
(ii) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall
otherwise issue to all holders of its Common Stock, rights or warrants
entitling the holders thereof to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per share
(determined as provided in subparagraph (vii) of this Section 6.1(a)) of
the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the Shares Amount in effect at
the opening of business on the day following the date fixed for such
determination shall be increased by multiplying the Shares Amount by a
fraction of which the denominator shall be the number of shares of Common
Stock outstanding at the Close of Business on the date fixed for such
determination plus the number of shares of Common Stock which the aggregate
of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current market
price and the numerator shall be the number of shares of Common Stock
outstanding at the Close of Business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately
after the opening of business on the day following the date fixed for such
determination. For the purposes of this subparagraph (ii), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company. The Company shall not issue any rights
or warrants in respect of shares of Common Stock held in the treasury of
the Company. In case any rights or warrants referred to in this
subparagraph (ii) in respect of which an adjustment shall have been made
shall expire unexercised within 60 days after the same shall have been
distributed or issued by the Company, the Shares Amount shall be readjusted
at the time of such expiration to the Shares Amount that would have been in
effect if no adjustment had been made on account of the distribution or
issuance of such expired rights or warrants.
(iii) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Shares Amount in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the Shares Amount
in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
decreased, such reduction or increase, as the case may be, to become
effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective. No
reduction in the Shares Amount may occur except pursuant to this
subparagraph (iii).
(iv) Subject to the last two sentences of this subparagraph (iv), in
case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock evidences of its indebtedness, shares of any class or
series of stock, cash or assets (including securities, but excluding any
rights or warrants referred to in subparagraph (ii) of this Section 6.1(a),
any dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in subparagraph (i) of this Section 6.1(a)), the
Shares Amount shall be increased so that the same shall equal the number
determined by multiplying the Shares
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Amount in effect immediately prior to the effectiveness of the Shares
Amount increase contemplated by this subparagraph (iv) by a fraction of
which the denominator shall be the current market price per share
(determined as provided in subparagraph (vii) of this Section 6.1(a)) of
the Common Stock on the date fixed for the payment of such distribution
(the "Reference Date") less the fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors), on the Reference
Date, of the portion of the evidences of indebtedness, shares of stock,
cash and assets so distributed applicable to one share of Common Stock and
the numerator shall be such current market price per share of the Common
Stock, such increase to become effective immediately prior to the opening
of business on the day following the Reference Date. If the Board of
Directors determines the fair market value of any distribution for purposes
of this subparagraph (iv) by reference to the actual or when issued trading
market for any securities comprising such distribution, it must in doing so
consider the prices in such market over the same period used in computing
the current market price per share of Common Stock pursuant to subparagraph
(vii) of this Section 6.1(a). For purposes of this subparagraph (iv), any
dividend or distribution that includes shares of Common Stock or rights or
warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, cash, assets or shares of stock other than such shares of
Common Stock or such rights or warrants (making any Shares Amount increase
required by this subparagraph (iv)) immediately followed by (2) a dividend
or distribution of such shares of Common Stock or such rights or warrants
(making any further Shares Amount increase required by subparagraph (i) or
(ii) of this Section 6.1(a), except (A) the Reference Date of such dividend
or distribution as defined in this subparagraph (iv) shall be substituted
as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution, "the date fixed for the
determination of stockholders entitled to receive such rights or warrants"
and "the date fixed for such determination" within the meaning of
subparagraphs (i) and (ii) of this Section 6.1(a) and (B) any shares of
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the Close of Business on the date fixed for such
determination" within the meaning of subparagraph (i) of this Section
6.1(a)). Notwithstanding anything to the contrary contained in this Article
6, the Company may one time in any twelve-month period pay a dividend or
distribution on its Common Stock exclusively in the form of securities of
(or other ownership interests in) any subsidiary of the Company (a "Partial
Spin-Off") without any adjustment to the Shares Amount on account thereof
if the fair market value (determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) of the Partial Spin-Off distributed
per share of Common Stock outstanding on the date fixed for such
determination does not exceed 8% of the current market price per share
(determined as provided in subparagraph (vii) of this Section 6.1(a) of the
Common Stock on the Trading Day next preceding the date of declaration of
such dividend).
(v) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding, in the
case of any quarterly cash dividend on the Common Stock, the portion
thereof that does not exceed the greater of (x) the per share amount of the
next preceding quarterly cash dividend on the Common Stock (as adjusted to
appropriately reflect any of the events referred to in subparagraphs (i),
(ii), (iii), (iv), (v) and
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(vi) of this Section 6.1(a)), and (y) the per share amount which, when
multiplied by four, and added to the fair market value (as determined in
the last sentence of (iv) above) of any Partial Spin-Off distributed per
share of Common Stock during the preceding twelve-month period, is equal to
or less than 8% of the current market price per share (determined as
provided in subparagraph (vii) of this Section 6.1(a)) of the Common Stock
on the Trading Day next preceding the date of declaration of such
dividend), the Shares Amount shall be increased so that the same shall
equal the number determined by multiplying the Shares Amount in effect
immediately prior to the effectiveness of the Shares Amount increase
contemplated by this subparagraph (v) by a fraction of which the
denominator shall be the current market price per share (determined as
provided in subparagraph (vii) of this Section 6.1(a)) of the Common Stock
on the date fixed for the payment of such distribution less the amount of
cash so distributed and not excluded as provided above applicable to one
share of Common Stock and the numerator shall be such current market price
per share of Common Stock, such increase to become effective immediately
prior to the opening of business on the day following the date fixed for
the payment of such distribution.
(vi) In case a tender or exchange offer made by the Company or by any
subsidiary of the Company for all or any portion of the Company's Common
Stock shall expire and such tender or exchange offer shall involve the
payment by the Company or such subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such tender
or exchange offer (as it shall have been amended) that exceeds the current
market price per share (determined as provided in subparagraph (vii) of
this Section 6.1(a)) of the Common Stock on the Trading Day next succeeding
the Expiration Time, the Shares Amount shall be increased so that the same
shall equal the number determined by multiplying the Shares Amount in
effect immediately prior to the effectiveness of the Shares Amount increase
contemplated by this subparagraph (vi) by a fraction of which the
denominator shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time
multiplied by the current market price per share (determined as provided in
subparagraph (vii) of this Section 6.1(a)) of the Common Stock on the
Trading Day next succeeding the Expiration Time and the numerator shall be
the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) at
the Expiration Time and the current market price per share (determined as
provided in subparagraph (vii) of this Section 6.1(a)) of the Common Stock
on the Trading Day next succeeding the Expiration Time, such increase to
become effective immediately prior to the opening of business on the day
following the Expiration Time.
(vii) For the purpose of any computation under subparagraph (ii), (iv)
and (v) of this Section 6.1(a), the "current market price" per share of
Common Stock on any date in question shall be deemed to be the average of
the daily Closing Prices for the five
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consecutive Trading Days prior to and including the date in question;
provided, however, that (1) if the "ex" date (as hereinafter defined) for
any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Shares Amount pursuant to
subparagraph (i), (ii), (iii), (iv), (v) or (vi) above ("Other Event")
occurs after the fifth Trading Day prior to the day in question and prior
to the "ex" date for the issuance or distribution requiring such
computation (the "Current Event"), the Closing Price for each Trading Day
prior to the "ex" date for such Other Event shall be adjusted by
multiplying such Closing Price by the reciprocal of the fraction by which
the Shares Amount is so required to be adjusted as a result of such Other
Event, (2) if the "ex" date for any Other Event occurs after the "ex" date
for the Current Event and on or prior to the date in question, the Closing
Price for each Trading Day on and after the "ex" date for such Other Event
shall be adjusted by multiplying such Closing Price by the fraction by
which the Shares Amount is so required to be adjusted as a result of such
Other Event, (3) if the "ex" date of any Other Event occurs on the "ex"
date for the Current Event, one of those events shall be deemed for
purposes of clauses (1) and (2) of this proviso to have an "ex" date
occurring prior to the "ex" date for the other event, and (4) if the "ex"
date for the Current Event is on or prior to the date in question, after
taking into account any adjustment required pursuant to clause (2) of this
proviso, the Closing Price for each Trading Day on or after such "ex" date
shall be adjusted by adding thereto the amount of any cash and the fair
market value on the date in question (as determined in good faith by the
Board of Directors in a manner consistent with any determination of such
value for purposes of paragraph (iv) or (v) of this Section 6.1(a), whose
determination shall be conclusive and described in a resolution of the
Board of Directors) of the portion of the rights, warrants, evidences of
indebtedness, shares of stock or assets being distributed applicable to one
share of Common Stock. For the purpose of any computation under
subparagraph (vi) of this Section 6.1(a), the current market price per
share of Common Stock on any date in question shall be deemed to be the
average of the daily Closing Prices for such date in question and the next
two succeeding Trading Days; provided, however, that if the "ex" date for
any event (other than the tender or exchange offer requiring such
computation) that requires an adjustment to the Shares Amount pursuant to
subparagraph (i), (ii), (iii), (iv), (v) or (vi) above occurs after the
Expiration Time for the tender or exchange offer requiring such computation
and on or prior to the second Trading Day following the date in question,
the Closing Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price by the
fraction by which the Shares Amount is so required to be adjusted as a
result of such other event. For purposes of this paragraph, the term "ex"
date, (1) when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution, (2)
when used with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock trades regular
way on such exchange or in such market after the time at which such
subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer, means the first date on which the
Common Stock trades regular way on such exchange or in such market after
the Expiration Time of such offer.
(viii) The Company may make such increase in the Shares Amount, in
addition to those required by subparagraphs (i), (ii), (iii), (iv), (v) and
(vi) of this Section 6.1(a), as it
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considers to be advisable to avoid or diminish an income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend
or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes. The Company from time to time may
increase the Shares Amount by any amount for any period of time if the
period is at least twenty days, the increase is irrevocable during the
period, and the Board of Directors of the Company shall have made a
determination that such increase would be in the best interest of the
Company, which determination shall be conclusive. Whenever the Shares
Amount is increased pursuant to the preceding sentence, the Company shall
mail to Holders a notice of the increase at least fifteen days prior to the
date the increased Shares Amount takes effect, and such notice shall state
the increased Shares Amount and the period it will be in effect.
(ix) No adjustment in the Shares Amount shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Shares Amount; provided, however, that any adjustments which by reason of
this subparagraph (ix) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
(x) Whenever the Shares Amount is adjusted as herein provided:
(1) the Company shall compute the adjusted Shares Amount and shall
prepare a certificate signed by the Chief Financial Officer of the Company
setting forth the adjusted Shares Amount and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Warrant Agent; and
(2) a notice stating the Shares Amount have been adjusted and
setting forth the adjusted Shares Amount shall forthwith be required, and
as soon as practicable after it is required such notice shall be mailed by
the Company to all Holders.
(b) No Fractional Shares. No fractional shares of Common Stock shall be
issued upon exercise of the Warrants. If more than one Warrant is exercised by
the same Holder at one time, the number of full shares issuable upon such
exercise shall be computed on the basis of the aggregate number of Warrants so
exercised. Instead of any fractional share of Common Stock that would otherwise
be issuable to a holder upon exercise of the Warrants, the Company shall pay a
cash adjustment in respect of such fractional share in an amount equal to the
same fraction of the Closing Price per share of Common Stock as of the date of
such exercise.
(c) Reclassification, Consolidation, Merger or Sale of Assets. In the
event that the Company shall be a party to any transaction (including without
limitation any recapitalization or reclassification of the Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination of the Common
Stock and other than the reclassification of unissued Common Stock into other
stock of the Company), any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another person into the Company
(other than a merger which does not result in a reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company),
any sale or transfer of all or substantially all of the assets of the Company or
any compulsory share exchange) pursuant to which the Common Stock is converted
into the right to
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receive other securities, cash or other property, then lawful provisions shall
be made as part of the terms of such transaction whereby the holder of each
Warrant then outstanding shall have the right thereafter to exercise such
Warrant only for (i) in the case of any such transaction other than a Common
Stock Fundamental Change and subject to funds being legally available for such
purpose under applicable law at the time of such exercise, the kind and amount
of securities, cash and other property receivable upon such transaction by a
holder of the number of shares of Common Stock of the Company for which such
Warrant could have been exercised immediately prior to such transaction, and
(ii) in the case of a Common Stock Fundamental Change, common stock of the kind
received by holders of Common Stock as a result of such Common Stock Fundamental
Change in an amount determined pursuant to the provisions of Section 6.1(e). The
Company or the Person formed by such consolidation or resulting from such merger
or which acquires such assets or which acquires the Company's shares, as the
case may be, shall execute an agreement in form and substance reasonably
acceptable to the Holders evidencing such right. Such agreement shall provide
for adjustments which, for events subsequent to the effective date of such
agreement, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 6. The above provisions shall similarly
apply to each and every successive transaction of the foregoing type.
(d) Prior Notice of Certain Events. In case:
(i) the Company shall (1) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash in an amount not
greater than its retained earnings other than any special or nonrecurring
or other extraordinary dividend or (2) declare or authorize a redemption or
repurchase of in excess of 10% of the then-outstanding shares of Common
Stock; or
(ii) the Company shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for or
purchase any share of stock of any class or series or of any other
rights or warrants; or
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par value to par
value and other than the reclassification of unissued Common Stock into
other stock of the Company), or of any consolidation or merger to which the
Company is a party and for which approval of any shareholders of the
Company shall be required, or of the sale or transfer of all or
substantially all of the assets of the Company or of any compulsory share
exchange whereby the Common Stock is converted into other securities, cash
or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be mailed to the Holders, at least 10 days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a
record (if any) is to be taken for the purpose of such dividend, distribution,
redemption, repurchase, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution,
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redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
(e) Adjustments in Case of Fundamental Changes. Notwithstanding any
other provision in this Article 6 to the contrary, if any Fundamental Change (as
defined in Section 6.1(f)) occurs, then the Shares Amount in effect will be
adjusted immediately after such Fundamental Change as described below. In
addition, in the event of a Common Stock Fundamental Change (as defined in
Section 6(f)), each Warrant shall be exercisable solely in exchange for common
stock of the kind and amount received by holders of Common Stock as a result of
such Common Stock Fundamental Change as more specifically provided below in this
Section 6.1(e).
For purposes of calculating any adjustment to be made pursuant to this
Section 6.1(e) in the event of a Fundamental Change, immediately after such
Fundamental Change in the case of a Common Stock Fundamental Change, the Shares
Amount in effect immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected pursuant to this
Section 6, shall thereupon be adjusted by multiplying such Shares Amount by a
fraction of which the denominator shall be the Purchaser Stock price (as defined
in Section 6.1(f)) and the numerator shall be the Applicable Price; provided,
however, that in the event of a Common Stock Fundamental Change in which (A)
100% by value of the consideration received by a holder of Common Stock is
common stock of the successor, acquiror or other third party (and cash, if any,
is paid with respect to any fractional interests in such common stock resulting
from such Common Stock Fundamental Change) and (B) all of the Common Stock shall
have been exchanged for, converted into or acquired for common stock (and cash
with respect to fractional interests) of the successor, acquiror or other third
party, the Shares Amount in effect immediately prior to such Common Stock
Fundamental Change shall thereupon be adjusted by multiplying such Shares Amount
by the number of shares of common stock of the successor, acquiror, or other
third party received by a shareholder for one share of Common Stock as a result
of such Common Stock Fundamental Change.
(f) Definitions. The following definitions shall apply to terms used in
this Article 6:
(i) "Applicable Price" shall mean (1) in the event of a Non-Stock
Fundamental Change in which the holders of the Common Stock receive only
cash, the amount of cash received by a shareholder for one share of Common
Stock and (2) in the event of any other Non-Stock Fundamental Change or any
Common Stock Fundamental Change, the average of the daily Closing Prices of
the Common Stock for the ten consecutive Trading Days prior to and
including the record date for the determination of the holders of Common
Stock entitled to receive securities, cash or other property in connection
with such Non-Stock Fundamental Change or Common Stock Fundamental Change,
or, if there is no such record date, the date upon which the holders of the
Common Stock shall have the right to receive such securities,
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cash or other property, in each case, as adjusted in good faith by the
Board of Directors of the Company to appropriately reflect any of the
events referred to in subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of
Section 6.1(a).
(ii) "Common Stock Fundamental Change" shall mean any Fundamental
Change in which more than 50% by value (as determined in good faith by the
Board of Directors of the Company) of the consideration received by holders
of Common Stock consists of common stock that for each of the ten
consecutive Trading Days referred to with respect to such Fundamental
Change in Section 6.1(f)(i) above has been admitted for listing or admitted
for listing subject to notice of issuance on a national securities exchange
or quoted on the NASDAQ National Market System; provided, however, that a
Fundamental Change shall not be a Common Stock Fundamental Change unless
either (1) the Company continues to exist after the occurrence of such
Fundamental Change and the outstanding Warrants continue to exist as
outstanding Warrants, or (2) not later than the occurrence of such
Fundamental Change, the outstanding Warrants are converted into or
exchanged for warrants of a corporation succeeding to the business of the
Company, which warrants have terms identical to those of the Warrants.
(iii) "Fundamental Change" shall mean the occurrence of any transaction
or event in connection with a plan pursuant to which all or substantially
all of the Common Stock shall be exchanged for, converted into, acquired
for or constitute solely the right to receive securities, cash or other
property (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise); provided, however, in the case of a plan involving more than
one such transaction or event, for purposes of adjustment of the Shares
Amount, such Fundamental Change shall be deemed to have occurred when
substantially all of the Common Stock of the Company shall be exchanged
for, converted into, or acquired for or constitute solely the right to
receive cash, securities, property or other assets, but the adjustment
shall be based upon the highest weighted average of consideration per share
which a holder of Common Stock could have received in such transactions or
events as a result of which more than 50% of the Common Stock of the
Company shall have been exchanged for, converted into, or acquired for or
constitute solely the rights to receive cash, securities, property or other
assets.
(iv) "Non-Stock Fundamental Change" shall mean any Fundamental Change
other than a Common Stock Fundamental Change.
(v) "Purchaser Stock Price" shall mean, with respect to any Common
Stock Fundamental Change, the average of the daily Closing Prices of the
common stock received in such Common Stock Fundamental Change for the ten
consecutive Trading Days prior to and including the record date for the
determination of the holders of Common Stock entitled to receive such
common stock, or, if there is no such record date, the date upon which the
holders of the Common Stock shall have the right to receive such common
stock, in each case, as adjusted in good faith by the Board of Directors of
the Company to appropriately reflect any of the events referred to in
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of Section 6.1(a);
provided, however, if no such Closing Prices of the common stock for such
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Trading Days exist, then the Purchaser Stock price shall be set at a price
determined in good faith by the Board of Directors of the Company.
(g) Certain Additional Rights. In case the Company shall, by dividend
or otherwise, declare or make a distribution on its Common Stock referred to in
Section 6(a)(iv) or 6(a)(v) (including, without limitation, dividends or
distributions referred to in the last two sentences of Section 6(a)(iv)), the
holder of each Warrant, upon the exercise thereof subsequent to the Close of
Business on the date fixed for the determination of shareholders entitled to
receive such distribution and prior to the effectiveness of the Shares Amount
adjustment in respect of such distribution, shall also be entitled to receive
for each share of Common Stock for which such Warrant is exercised, the portion
of the shares of Common Stock, rights, warrants, evidences of indebtedness,
shares of stock, cash and assets so distributed applicable to one share of
Common Stock; provided, however, that, at the election of the Company (whose
election shall be evidenced by a resolution of the Board of Directors) with
respect to all holders so exercising, the Company may, in lieu of distributing
to such holder any portion of such distribution not consisting of cash or
securities of the Company, pay such holder an amount in cash equal to the fair
market value thereof (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors). If any exercise of a Warrant described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock which the holder of the Warrant so exercised is entitled
to receive in accordance with the immediately preceding sentence, the Company
may elect (such election to be evidenced by a resolution of the Board of
Directors) to distribute to such holder a due xxxx for the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of stock, cash or
assets to which such holder is so entitled, provided that such due xxxx (i)
meets any applicable requirements of the principal national securities exchange
or other market on which the Common Stock is then traded and (ii) requires
payment or delivery of such shares of Common Stock, rights, warrants, evidences
of indebtedness, shares of stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Common Stock receiving such
distribution.
(h) Reservation of Shares, Etc. The Company shall at all times reserve
and keep available, free from preemptive rights out of its authorized and
unissued stock, solely for the purpose of allowing the exercise of the Warrants,
such number of shares of its Common Stock as shall from time to time be
sufficient to permit the Company to deliver the Shares Amount in the event all
of the Warrants from time to time outstanding were exercised. The Company shall
from time to time, in accordance with the laws of the State of Maryland,
increase the authorized number of shares of Common Stock if at any time the
number of shares of authorized and unissued Common Stock shall not be sufficient
to permit the Company to deliver the Shares Amount upon the exercise of all of
the then-outstanding Warrants (taking into account the adjustments to the Shares
Amount that are provided for herein).
If any shares of common stock required to be reserved for purposes of
the exercise of the Warrants hereunder require registration with or approval of
any governmental authority under any Federal or State law before such shares may
be issued upon exercise, and an exemption under Section 3(a)(9) of the
Securities Act or similar exemption is not available, the Company will in good
faith and as expeditiously as possible endeavor to cause such shares to be duly
registered or approved as the case may be. If the Common Stock is quoted on the
NASDAQ National Market System or listed on any U.S. national securities
exchange, the Company will, if permitted by the rules of such
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exchange, list and keep listed on such exchange, upon official notice of
issuance, all shares of Common Stock issuable upon exercise of the Warrants. The
second sentence of this paragraph shall apply only when the Warrants shall have
become freely transferable pursuant to Rule 144(k) under the Securities Act or
if the shares of Common Stock issuable upon exercise of the Warrants are exempt
from the registration requirements of the Securities Act by operation of an
exemption referred to in the first sentence of this paragraph.
(i) Dividend or Interest Reinvestment Plans or Other Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of Common
Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan (a "DRIP"), and
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee or director benefit plan or program of the
Company or pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security outstanding as of the date hereof shall not be deemed to
constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above applies. There shall also be no adjustment of the Shares Amount
in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article 6. If any action would require adjustment of the Shares Amount pursuant
to more than one of the provisions described above, only one adjustment shall be
made and such adjustment shall be the amount of adjustment which has the highest
absolute value to holders of the Warrants.
ARTICLE 7
REGISTRATION RIGHTS AND PROCEDURES
Section 7.1. The Company acknowledges that it is subject to the terms
and conditions of the Registration Rights Agreement.
ARTICLE 8
Intentionally Deleted
ARTICLE 9
WARRANT AGENT
Section 9.1. Nature of Duties and Responsibilities Assumed.
(a) The Company hereby appoints the Warrant Agent to act as agent of
the Company as set forth in this Agreement. The Warrant Agent hereby accepts
such appointment as agent of the Company and agrees to perform that agency upon
the terms and conditions herein set forth, by all of which the Company and the
Holders, by their acceptance thereof, shall be bound.
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(b) The Warrant Agent shall not by countersigning the Warrant
Certificates or by any other act hereunder be deemed to make any representations
as to (i) the validity or authorization of the Warrants or the Warrant
Certificates (except as to its countersignature thereon), or of any securities
or other property delivered upon exercise or tender of any Warrant, (ii) the
accuracy of the computation of the Exercise Price or the number or kind or
amount of stock or other securities or other property deliverable upon exercise
of any Warrant, or (iii) the correctness of the representations of the Company
made in such certificates that the Warrant Agent receives.
(c) The Warrant Agent shall not have any duty to calculate or determine
any adjustments with respect either to the Exercise Price, the kind and amount
of shares or other securities or any property receivable by Holders upon the
exercise or tender of Warrants, and the Warrant Agent shall have no duty or
responsibility in determining the accuracy or correctness of such calculation.
The Warrant Agent shall not (i) be liable for any recital or statement of fact
contained herein, or in the Warrant Certificates, or for any action taken,
suffered or omitted by it in good faith on the belief that any Warrant
Certificate, or any other documents or any signatures are genuine or properly
authorized, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
(d) The Warrant Agent is hereby authorized to accept instructions with
respect to the performance of its duties hereunder from the Chairman, Chief
Executive Officer or President of the Company and to apply to any such officer
for instructions (which instructions will be promptly given in writing when
requested) and the Warrant Agent shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with the instructions of
any such officer, but in its discretion the Warrant Agent may in lieu thereof
accept other evidence of such or may require such further or additional evidence
as it may deem reasonable.
(e) The Warrant Agent may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, provided reasonable care has been
exercised in the selection and in the continued employment of any such attorney,
agent or employee. The Warrant Agent shall not be under any obligation or duty
to institute, appear in or defend any action, suit or legal proceeding in
respect hereof, unless first indemnified to its reasonable satisfaction, but
this provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or without such
indemnity. The Warrant Agent shall promptly notify the Company in writing of any
claim made or action, suit or proceeding instituted against it arising out of or
in connection with this Agreement.
(f) The Company will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
(g) The Warrant Agent shall act solely as agent of the Company
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Agreement against the
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Warrant Agent, whose duties and obligations shall be determined solely by the
express provisions hereof.
Section 9.2. Right to Consult Counsel. The Warrant Agent may at any
time consult with competent legal counsel, and the Warrant Agent shall incur no
liability or responsibility to the Company and to the Holders for any action
taken, suffered or omitted by it in good faith in accordance with the opinion or
advice of such counsel.
Section 9.3. Compensation and Reimbursement. The Company agrees to pay
to the Warrant Agent from time to time compensation for all services rendered by
it hereunder as the Company and the Warrant Agent may agree from time to time,
and to reimburse the Warrant Agent for reasonable expenses and disbursements
incurred in connection with the execution and administration of this Agreement
(including the reasonable compensation and the expenses of its counsel), and
further agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 9.4. Warrant Agent May Hold Company Securities. The Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
may buy, sell or deal in any of the securities of the Company or its Affiliates
or become pecuniarily interested in transactions in which the Company or its
Affiliates may be interested, or contract with or lend money to the Company or
its Affiliates or otherwise act as fully and freely as though it were not the
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
Section 9.5. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Warrant Agent and no appointment
of a successor warrant agent shall become effective until the acceptance of
appointment by the successor warrant agent as provided herein. The Warrant Agent
may resign its duties and be discharged from all further duties and liability
hereunder (except liability arising as a result of the Warrant Agent's own
negligence or willful misconduct) after giving written notice to the Company.
(b) The Company may remove the Warrant Agent upon written notice, and
the Warrant Agent shall thereupon in like manner be discharged from all further
duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall,
at the Company's expense, cause to be mailed (by first-class mail, postage
prepaid) to the Holders at their last address as shown on the register of the
Company maintained by the Warrant Agent a copy of said notice of resignation or
notice of removal, as the case may be.
(c) Upon such resignation or removal, the Company shall appoint in
writing a new warrant agent. If the Company shall fail to make such appointment
within a period of twenty (20) days after it has been notified in writing of
such resignation by the resigning Warrant Agent or after such removal, then the
Holders may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. Any new warrant agent, whether appointed by the Company or
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by such a court, shall be a corporation doing business under the laws of the
United States or any state thereof, in good standing and having a combined
capital and surplus of not less than $50,000,000. The combined capital and
surplus of any such new warrant agent shall be deemed to be the combined capital
and surplus as set forth in the most recent annual report of its condition
published by such warrant agent prior to its appointment, provided that such
reports are published at least annually pursuant to law or to the requirements
of a Federal or state supervising or examining authority.
(d) After acceptance in writing of such appointment by the new warrant
agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; but if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning or
removed Warrant Agent. Not later than the effective date of any such
appointment, the Company shall give notice thereof to the resigning or removed
Warrant Agent. Failure to give any notice provided for in this Section, however,
or any defect therein, shall not affect the legality or validity of the
resignation of the Warrant Agent or the appointment of a new warrant agent, as
the case may be.
(e) Any corporation into which the Warrant Agent or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Warrant Agent or any new warrant agent shall be a party, shall be a
successor Warrant Agent under this Agreement without any further act, provided
that such corporation would be eligible for appointment as successor to the
Warrant Agent under the provisions of Section 9.5(c). Any such successor Warrant
Agent shall promptly cause notice of its succession as Warrant Agent to be
mailed (by first-class mail, postage prepaid) to the Holders at their last
address as shown on the register of the Company maintained by the Warrant Agent.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.1. Representations and Warranties. The Company hereby
represents and warrants that, as of the date of this Agreement:
(a) Authorization. It has the corporate power and authority to enter
into this Agreement and to perform its obligations under, and consummate the
transactions contemplated by, this Agreement and has by proper action duly
authorized the execution and delivery of this Agreement.
(b) No Conflicts or Consents. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated herein,
nor the performance of and compliance with the terms and provisions hereof will:
(i) violate or conflict with any provision of its Articles of Incorporation or
By-laws; (ii) violate any law, regulation (including without limitation
Regulation G, T, U or X), order, writ, judgment, injunction, decree or permit
applicable to it; (iii) violate or materially conflict with any contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
-21-
which it is a party or by which it or any of its properties may be bound; or
(iv) result in or require the creation of any lien, security interest or other
charge or encumbrance (other than those contemplated in or in connection with
this Agreement) upon or with respect to its properties.
(c) Consents. No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental authority
or other Person is required in connection with the execution, delivery or
performance of this Agreement or the Warrants.
(d) Enforceable Obligations. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) Capitalization. As of the date hereof, the Company's authorized
stock consists of (i) 197,650,000 shares of Common Stock of which 20,410,605
have been issued and are outstanding, (ii) 350,000 shares of Class A Common
Stock, $.01 par value per share, of which 339,806 have been issued and are
outstanding, (iii) 2,000,000 shares of Series A 8% Convertible Redeemable
Preferred Stock, .$.01 par value per share, of which no shares have been issued
and are outstanding. As of the date hereof, (i) no shares of Common Stock are
held in treasury, except for shares in deferred compensation plan, which are
accounted for as treasury stock (489,671 shares of Common Stock), (ii) 1,326,235
shares of Common Stock have been reserved for issuance under the Company's
Rollover Stock Option Plan of which options to acquire all 1,326,235 shares of
Common Stock have been granted and (iii) 3,750,000 shares of Common Stock have
been reserved for issuance under the Company's 1997 Management Incentive Plan
and 1998 Management Incentive Plan of which options to acquire 2,232,375 shares
of Common Stock have been granted. The Company also grants shares of Common
Stock to directors in consideration of their service as directors.
ARTICLE 11
COVENANTS
Section 11.1. Reservation of Common Stock for Issuance on Exercise of
Warrants. The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
shares of Common Stock, solely for the purpose of issue upon exercise of
Warrants, as herein provided, such number of shares of Common Stock as shall
then be issuable upon the exercise of all Warrants issuable hereunder. The
transfer agent for the Common Stock (the "Transfer Agent") will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
the stock certificates required to honor outstanding Warrants upon exercise
thereof in accordance with the terms of this Agreement. The Company covenants
that all shares of Common Stock which shall be so issuable shall, upon payment
therefor as set forth in this Agreement and such issue, be duly and validly
issued and fully paid and
-22-
non-assessable, free of preemptive rights and free from all taxes, liens,
charges and security interests with respect to the issue thereof.
Section 11.2. Notice of Dividends. At any time when and if the Company
declares any dividend on its Common Stock, it shall give notice to the Holders
of all the then outstanding Warrants of any such declaration not less than ten
(10) days prior to the related record date for payment of the dividend so
declared.
Section 11.3. Reports. For so long as any Warrants remain outstanding
and not expired by their terms, the Company shall furnish to the Holders the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. In addition, the Company shall file with the Warrant Agent
within 15 days after it files them with the Commission copies of its SEC
Reports. In the event the Company shall cease to be required to file SEC Reports
pursuant to the Exchange Act, the Company shall nevertheless mail such SEC
Reports to Holders upon their request. The Company shall furnish copies of its
SEC Reports to Holders promptly after the Company files the same with the
Warrant Agent. The Company shall make all such information available to
investors, securities analysts and broker-dealers who request it in writing.
ARTICLE 12
WARRANT HOLDERS
Section 12.1. Warrant Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Warrant Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise or
conversion of the Warrants represented thereby, nor shall anything contained
herein or in any Warrant Certificate be construed to confer upon the holder of
any Warrant Certificate, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as specifically provided herein), or to receive
dividends or subscriptions rights, or otherwise, until the Warrant or Warrants
evidenced by such Warrant Certificate shall have been exercised and the Company
shall have elected to deliver Common Stock (and not cash) upon such exercise.
Section 12.2. Right of Action. All rights of action in respect of this
Agreement are vested in the Holders of the Warrants, and any Holder of any
Warrant, without consent of the Warrant Agent or any other Holder, may on such
Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to exercise
or exchange such Holder's Warrants in the manner provided in this Agreement.
-23-
ARTICLE 13
MISCELLANEOUS
Section 13.1. Money and Other Property Deposited with the Warrant
Agent. Any moneys, securities or other property which at any time shall be
deposited by the Company or by Holders with the Warrant Agent pursuant to this
Agreement shall be and are hereby assigned, transferred and set over to the
Warrant Agent in trust for the purpose for which such moneys, securities or
other property shall have been deposited; but such moneys, securities or other
property need not be segregated from other funds, securities or other property
except to the extent required by law. The Warrant Agent shall distribute any
money deposited with it for payment and distribution to the Company or to
Holders by a wire transfer in the appropriate amount to an account designated by
each such Person. Any money deposited with the Warrant Agent for payment and
distribution to the Company or the Holders that remains unclaimed for two years
after the date the money was deposited with the Warrant Agent shall be returned
to the Company or the relevant Holder(s) upon its or their request therefor.
Section 13.2. Payment of Taxes. The Company shall pay all transfer,
stamp and other similar taxes that may be imposed in respect of the issuance or
delivery of Warrants, or in respect of the issuance or delivery by the Company
of any securities upon exercise of Warrants with respect thereto. The Company
shall not be required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any certificate for shares
of Common Stock or other securities underlying the Warrants or payment of cash
to any Person other than the Holder of a Warrant Certificate surrendered upon
the exercise or purchase of a Warrant, and in case of such transfer or payment,
the Warrant Agent and the Company shall not be required to issue any stock
certificate or pay any cash until such tax or charge has been paid or it has
been established to the Warrant Agent's and the Company's satisfaction that no
such tax or other charge is due.
Section 13.3. Notices. (a) Any notice, demand or delivery authorized by
this Agreement shall be in writing and shall be sufficiently given or made when
delivered or on the third Business Day following the date sent by first-class
mail, postage prepaid, addressed (i) to any Holder at such Holder's address
shown on the register of the Company maintained by the Warrant Agent, (ii) to
the Company or the Warrant Agent as follows:
If to the Company: Wellsford Real Properties, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to the Warrant Agent: United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
-24-
or (iii) such other address as shall have been furnished to the party giving or
making such notice, demand or delivery.
(b) The Company hereby irrevocably authorizes the Warrant Agent, in the
name and at the expense of the Company, to mail to the Holders any such notice
upon receipt thereof from the Company.
Section 13.4. APPLICABLE LAW. THIS AGREEMENT, EACH WARRANT CERTIFICATE
AND EACH WARRANT ISSUED HEREUNDER AND ALL RIGHTS ARISING HEREUNDER SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 13.5. Persons Benefitting. This Agreement shall be binding upon
and inure to the benefit of any Holders (each of whom is an intended third party
beneficiary), the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators. Nothing in
this Agreement is intended or shall be construed to confer upon any Person,
other than the Company, the Warrant Agent and the Holders (and such successors,
assigns, beneficiaries, executors and administrators), any right, remedy or
claim under or by reason of this Agreement or any part hereof.
Section 13.6. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
Section 13.7. Supplements and Amendments. The Company and the
Warrant Agent may from time to time, without the consent of the Holders, by
supplemental agreement or otherwise, make any changes or corrections in this
Agreement in order to (a) cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, (b) add to the covenants and agreements of the Company for the benefit
of the Holders, or surrender any rights or power reserved to or conferred upon
the Company in this Agreement, (c) modify the restrictions on, and procedures
for, resale and other transfers of the Warrants to the extent required or
permitted by any change in applicable law or regulation (or the interpretation
thereof) of the United States of America or in practices relating to the resale
or transfer of restricted securities generally or (d) evidence the succession of
another Person to the Company or the Warrant Agent and the assumption by such
successor of this Agreement as provided herein; provided, that, in each case,
such changes or corrections shall in any respect not adversely affect the
interests of the Holders. The Warrant Agent shall send a copy of any such
supplemental agreement or amendment to each of the Holders by first-class mail
at the Company's expense. The Warrant Agent shall join with the Company in the
execution and delivery of any such supplemental agreements and amendments unless
it affects the Warrant Agent's own rights, duties or immunities hereunder, in
which case the Warrant Agent may, but shall not be required to, join in such
execution and delivery. Any amendment or supplement to this Agreement that has
an adverse effect on the rights of Holders as set forth in this Agreement shall
require the written consent of registered Holders of two-thirds (2/3) of the
then outstanding Warrants. Notwithstanding the foregoing, the consent of each
Holder of a Warrant affected shall be required for any amendment pursuant to
which the Shares Amount would be decreased.
-25-
Section 13.8. Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section 13.9. Remedies. In the event of a breach by the Company or by a
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
[SIGNATURE PAGE FOLLOWS]
-26-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
UNITED STATES TRUST COMPANY OF
NEW YORK, Warrant Agent
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE COMMON STOCK
OF WELLSFORD REAL PROPERTIES, INC.
No._______ Certificate for ______ Warrants
This certifies that [HOLDER] , or registered assigns, is the registered
holder of the number of Warrants set forth above. Each Warrant entitles the
holder thereof (a "Holder"), subject to the provisions contained herein and in
the Warrant Agreement referred to below, to purchase, from Wellsford Real
Properties, Inc., a Maryland corporation (the "Company"), the number of shares
of the Company's common stock, par value $.01 per share (the "Common Stock"), as
provided in the Warrant Agreement, at an exercise price and subject to all of
the terms and conditions set forth in the Warrant Agreement. At the sole
election of the Company, upon the exercise of any Warrant, the Company may pay
to the Holder a certain amount of cash, as provided in the Warrant Agreement, in
lieu of delivering the shares of Common Stock.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of May ___, 1999 (the "Warrant Agreement"), between
the Company and United States Trust Company of New York, as warrant agent (the
"Warrant Agent", which term includes any successor Warrant Agent under the
Warrant Agreement), 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. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Warrant Agent and the Holders of the Warrants.
This Warrant Certificate shall terminate and be void as of the Close of
Business on May ___, 2004.
As provided in the Warrant Agreement and subject to the terms and
conditions therein set forth, the Warrants shall be exercisable from time to
time on any Business Day beginning on May ___, 2004, and ending on the
Expiration Date.
The Exercise Price and the number of shares of Common Stock issuable
upon the exercise of each Warrant are subject to adjustment as provided in the
Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise of
Warrants shall, upon payment therefor as set forth in the Warrant Agreement and
such issue, be duly and validly issued and fully paid and non-assessable.
A-1
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the corporate trust office of the Warrant
Agent, with the Exercise Subscription Form on the reverse hereof duly executed
by the Holder hereof, with signature guaranteed as therein specified, together
with any required payment in full of the Exercise Price then in effect for the
share(s) of Underlying Common Stock as to which the Warrant(s) represented by
this Warrant Certificate are submitted for exercise, all subject to the terms
and conditions hereof and of the Warrant Agreement. Any such payment of the cash
Exercise Price shall be by certified or official bank check drawn on a New York
City bank payable to the order of the Company.
The Company shall pay all transfer, stamp and other similar taxes that
may be imposed in respect of the issuance or delivery of the Warrants or in
respect of the issuance or delivery by the Company of any securities upon
exercise of the Warrants. The Company shall not be required, however, to pay any
tax or other charge imposed in connection with any transfer involved in the
issuance of any certificate for shares of Common Stock or other securities
underlying the Warrants or payment of cash to any Person other than the Holder
of a Warrant Certificate surrendered upon the exercise or purchase of a Warrant,
and in case of such transfer or payment, the Warrant Agent and the Company shall
not be required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Subject to the Warrant Agreement, this Warrant Certificate and all
rights hereunder are transferable by the registered holder hereof, in whole or
in part, on the register of the Company, upon surrender of this Warrant
Certificate for registration of transfer at the office of the Warrant Agent
maintained for such purpose in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Warrant Agent duly executed by, the Holder hereof or his
attorney duly authorized in writing, with signature guaranteed as specified in
the attached Form of Assignment. Upon any partial transfer, the Company will
issue and deliver to such holder a new Warrant Certificate or Certificates with
respect to any portion not so transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each taker and holder of this Warrant Certificate, by taking or holding
the same, consents and agrees that this Warrant Certificate when duly endorsed
in blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the register of the
Company maintained by the Warrant Agent, any notice to the contrary
notwithstanding, but until such transfer on such register, the Company and the
Warrant Agent may treat the registered Holder hereof as the owner for all
purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
A-2
All terms used in this Warrant Certificate that are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
Copies of the Warrant Agreement are on file at the office of the
Company and may be obtained by writing to the Company at the following address:
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-3
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
Dated: __________
WELLSFORD REAL PROPERTIES, INC.
By:________________________________________
Name:
Title:
Countersigned:
UNITED STATES TRUST COMPANY OF
NEW YORK, Warrant Agent
By: _____________________________
Name:
Title:
A-4
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: Wellsford Real Properties, Inc.
The undersigned irrevocably exercises __________of the
Warrants for, at your election, either (i) the Shares Amount or (ii) the Cash
Amount and herewith makes payments of $
and/or delivers membership units of Wellsford\Whitehall
Group, L.L.C. (such cash payment being by certified or official bank check drawn
on a New York City bank payable to the order of Wellsford Real Properties,
Inc.), all at the Exercise Price and on the terms and conditions specified in
the within Warrant Certificate and the Warrant Agreement therein referred to,
surrenders this Warrant Certificate and all right, title and interest therein to
Wellsford Real Properties, Inc. and directs that any shares of Common Stock
deliverable upon the exercise of such Warrants be registered in the name and
delivered at the address specified below or any Cash Amount be wired to the
account specified below.
Date:__________________
______________________________________*
(Signature of Owner)
______________________________________
(Xxxxxx Xxxxxxx)
______________________________________
(City) (State) (Zip Code)
[Signature Guaranteed by:
______________________________________]
Securities and/or check to be issued to:
Please insert social security or identifying number:
-----------------
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the Warrant Agent.
A-5
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Wire transfer instructions:
A-6
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants constituting
a part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the rights of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
Social Security or
other Identifying
Names of Number of
Assignees Address Assignee(s) Number of Warrants
--------- ------- ----------- ------------------
A-7
and does hereby irrevocably constitute and appoint ________________ the
undersigned's attorney to make such transfer on the books of __________________
maintained for that purpose, with full power of substitution in the premises.
Date:__________________
______________________________________*
(Signature of Owner)
______________________________________
(Xxxxxx Xxxxxxx)
______________________________________
(City) (State) (Zip Code)
[Signature Guaranteed by:
______________________________________]
-------------
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the Warrant Agent.
A-8
