Exhibit 10.21
FORM OF
HERSHA HOSPITALITY TRUST
WARRANT AGREEMENT
____________, 1998
Xxxxxxxx & Xxxxxxxxx, Incorporated
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Hersha Hospitality Trust, a Maryland real estate investment trust (the
"Company"), agrees to issue and sell to you warrants (the "Warrants") to
purchase the number of common shares of beneficial interest (the "Common
Shares"), of the Company set forth herein, subject to the terms and conditions
contained herein.
1. Issuance of Warrants; Exercise Price. The Warrants, which shall be
in the form attached hereto as Exhibit A, shall be issued to you concurrently
with the execution hereof in consideration of the payment by you to the Company
of the sum of $0.001 cash per Common Share subject to the Warrants, the receipt
and sufficiency of which are hereby acknowledged. The Warrants shall provide
that you and such other holder or holders of the Warrants shall have the right
to purchase an aggregate of 250,000 Common Shares for an exercise price equal to
$9.90 per share (the "Exercise Price") or $2,475,000 in the aggregate. The
number, character and Exercise Price of such Common Shares are subject to
adjustment as hereinafter provided, and the term "Common Shares" shall mean,
unless the context otherwise requires, the shares and other securities and
property receivable upon exercise of the Warrants. The term "Exercise Price"
shall mean, unless the context otherwise requires, the price per share of the
Common Shares purchasable under the Warrants as set forth in this Section 1, as
adjusted from time to time pursuant to Section 5.
2. Notices of Record Date; Etc.. In the event of (i) any taking by the
Company of a record date with respect to the holders of any class of securities
of the Company for purposes of determining which of such holders are entitled to
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dividends or other distributions (other than regular quarterly dividends or
distributions), or any right to subscribe for, purchase or otherwise acquire
shares of any class or any other securities or property, or to receive any other
right, (ii) any capital reorganization of the Company, or reclassification or
recapitalization of capital shares of the Company or any transfer in one or more
related transactions of all or a majority of the assets or revenue or income
generating capacity of the Company to, or consolidation or merger of the Company
with or into, any other entity or person, or (iii) any voluntary or involuntary
dissolution or winding up of the Company, then and in each such event the
Company will mail or cause to be mailed to each holder of a Warrant at the time
outstanding a notice specifying, as the case may be, (A) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right; or (B) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, conveyance, dissolution,
liquidation or winding-up is to take place and the time, if any is to be fixed,
as of which the holders of record of Common Shares (or any other class of shares
or securities of the Company, or another issuer pursuant to Section 5,
receivable upon the exercise of the Warrants) shall be entitled to exchange
their Common Shares (or such other shares or securities) for securities or other
property deliverable upon such event. Any such notice shall be deposited in the
United States mail, postage prepaid, at least ten (10) days prior to the date
therein specified, and the holder(s) of the Warrant(s) may exercise the
Warrant(s) and participate in such event as a registered holder of Common
Shares, upon exercise of the Warrant(s) so held, within the ten (10) day period
from the date of mailing of such notice.
3. No Impairment. The Company shall not, by amendment of its
organizational documents or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities, or any other
action, avoid or seek to avoid the observance or performance of any of the terms
of this Agreement or of the Warrants, but will at all times in good faith take
any and all action as may be necessary in order to protect the rights of the
holders of the Warrants against impairment. Without limiting the generality of
the foregoing, the Company (a) will at all times reserve and keep available,
solely for issuance and delivery upon exercise of the Warrants, the Common
Shares issuable from time to time upon exercise of the Warrants, (b) will not
increase the par value of any shares receivable upon exercise of the Warrants
above the amount payable in respect thereof upon such exercise, and (c) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable shares upon
the exercise of the Warrants, or any of them.
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4. Exercise of Warrants. At any time and from time to time on and after
_______________, 1999 and expiring on ______________, 2003 at 5:00 p.m.,
Richmond, Virginia time, Warrants may be exercised as to all or any portion of
the whole number of Common Shares covered by the Warrants by the holder thereof
by surrender of the Warrants, accompanied by a subscription for shares to be
purchased in the form attached hereto as Exhibit B and by a check payable to the
order of the Company in the amount required for purchase of the shares as to
which the Warrant is being exercised, delivered to the Company at its principal
office at 000 Xxxxxxxx Xxxxx, Xxx X, Xxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Chief Executive Officer. Upon the exercise of a Warrant in whole or
in part, the Company will within five (5) days thereafter, at its expense
(including the payment of any applicable issue or transfer taxes), cause to be
issued in the name of and delivered to the Warrant holder a certificate or
certificates for the number of fully paid and non-assessable Common Shares to
which such holder is entitled upon exercise of the Warrant. In the event such
holder is entitled to a fractional share, in lieu thereof such holder shall be
paid a cash amount equal to such fraction, multiplied by the Current Value of
one full Common Share on the date of exercise. Certificates for Common Shares
issuable by reason of the exercise of the Warrant or Warrants shall be dated and
shall be effective as of the date of the surrendering of the Warrant for
exercise, notwithstanding any delays in the actual execution, issuance or
delivery of the certificates for the shares so purchased. In the event a Warrant
or Warrants is exercised as to less than the aggregate amount of all Common
Shares issuable upon exercise of all Warrants held by such person, the Company
shall issue a new Warrant to the holder of the Warrant so exercised covering the
aggregate number of Common Shares as to which Warrants remain unexercised.
For purposes of this section, Current Value is defined (i) in
the case for which a public market exists for the Common Shares at the time of
such exercise, at a price per share equal to (A) the average of the means
between the closing bid and asked prices of the Common Shares in the
over-the-counter market for 20 consecutive business days commencing 30 business
days before the date of such notice, (B) if the Common Shares are quoted on
Nasdaq, at the average of the means of the daily closing bid and asked prices of
the Common Shares for 20 consecutive business days commencing 30 business days
before the date of such notice, or (C) if the Common Shares are listed on any
national securities exchange or the Nasdaq National Market, at the average of
the daily closing prices of the Common Shares for 20 consecutive business days
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commencing 30 business days before the date of such notice, and (ii) in the case
no public market exists at the time of such exercise, at the Appraised Value.
For the purposes of this Agreement, "Appraised Value" is the value determined in
accordance with the following procedures. For a period of five (5) days after
the date of an event (a "Valuation Event") requiring determination of Current
Value at a time when no public market exists for the Common Shares (the
"Negotiation Period"), each party to this Agreement agrees to negotiate in good
faith to reach agreement upon the Appraised Value of the securities or property
at issue, as of the date of the Valuation Event, which will be the fair market
value of such securities or property, without premium for control or discount
for minority interests, illiquidity or restrictions on transfer. In the event
that the parties are unable to agree upon the Appraised Value of such securities
or other property by the end of the Negotiation Period, then the Appraised Value
of such securities or property will be determined for purposes of this Agreement
by a recognized appraisal or investment banking firm mutually agreeable to the
holders of the Warrants and the Company (the "Appraiser"). If the holders of the
Warrants and the Company cannot agree on an Appraiser within two (2) business
days after the end of the Negotiation Period, the Company, on the one hand, and
the holders of the Warrants, on the other hand, will each select an Appraiser
within ten (10) business days after the end of the Negotiation Period and those
Appraisers will determine the fair market value of such securities or property,
without premium for control or discount for minority interests. Such independent
Appraiser(s) will be directed to determine fair market value of such securities
or property as soon as practicable, but in no event later than thirty (30) days
from the date of its selection. The determination by Appraiser(s) of the fair
market value will be conclusive and binding on all parties to this Agreement. If
there are two Appraisers, and they do not agree as to fair market value, then
fair market value shall be determined to be the average of the fair market
values as determined by each Appraiser. Appraised Value of each Common Share at
a time when (i) the Company is not a reporting company under the Securities
Exchange Act of 1934 and (ii) the Common Shares are not traded in the organized
securities markets, will, in all cases, be calculated by determining the
Appraised Value of the entire Company taken as a whole and dividing that value
by the number of Common Shares then outstanding, without premium for control or
discount for minority interests, illiquidity or restrictions on transfer. The
costs of the Appraiser(s) will be borne by the Company. In no event will the
Appraised Value of the Common Shares be less than the per share consideration
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received or receivable with respect to the Common Shares or other securities or
property of the same class in connection with a pending transaction involving a
sale, merger, recapitalization, reorganization, consolidation, or share
exchange, dissolution of the Company, sale or transfer of all or a majority of
its assets or revenue or income generating capacity, or similar transaction.
5. Protection Against Dilution. The Exercise Price for the Common
Shares and number of Common Shares issuable upon exercise of the Warrants is
subject to adjustment from time to time as follows:
(a) Dividends, Subdivisions, Reclassifications, Etc.. In case
at any time or from time to time after the date of execution of this Agreement,
the Company shall (i) take a record of the holders of Common Shares for the
purpose of entitling them to receive a dividend or a distribution on Common
Shares payable in Common Shares or other class of securities, (ii) subdivide or
reclassify its outstanding Common Shares into a greater number of shares, or
(iii) combine or reclassify its outstanding Common Shares into a smaller number
of shares, then, and in each such case, the Exercise Price in effect at the time
of the record date for such dividend or distribution or the effective date of
such subdivision, combination or reclassification shall be adjusted in such a
manner that the Exercise Price for the shares issuable upon exercise of the
Warrants immediately after such event shall bear the same ratio to the Exercise
Price in effect immediately prior to any such event as the total number of
Common Shares outstanding immediately prior to such event shall bear to the
total number of Common Shares outstanding immediately after such event.
(b) Adjustment of Number of Shares Purchasable. When any
adjustment is required to be made in the Exercise Price under this Section 5,
(i) the number of Common Shares issuable upon exercise of the Warrants shall be
changed (upward to the nearest full share) to the number of shares determined by
dividing (x) an amount equal to the number of shares issuable pursuant to the
exercise of the Warrants immediately prior to the adjustment, multiplied by the
Exercise Price in effect immediately prior to the adjustment, by (y) the
Exercise Price in effect immediately after such adjustment, and (ii) upon
exercise of the Warrant, the holder will be entitled to receive the number of
shares or other securities referred to in Section 5(a) that such holder would
have received had the Warrant been exercised prior to the events referred to in
Section 5(a).
(c) Adjustment for Reorganization, Consolidation, Merger,
Etc.. In case of any reorganization or consolidation of the Company with, or any
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merger of the Company with or into, another entity (other than a consolidation
or merger in which the Company is the surviving corporation) or in case of any
sale or transfer to another entity of the majority of assets of the Company, the
entity resulting from such reorganization or consolidation or surviving such
merger or to which such sale or transfer shall be made, as the case may be,
shall make suitable provision (which shall be fair and equitable to the holders
of Warrants) and shall assume the obligations of the Company hereunder (by
written instrument executed and mailed to each holder of the Warrants then
outstanding) pursuant to which, upon exercise of the Warrants, at any time after
the consummation of such reorganization, consolidation, merger or conveyance,
the holder shall be entitled to receive the shares or other securities or
property that such holder would have been entitled to upon consummation if such
holder had exercised the Warrants immediately prior thereto, all subject to
further adjustment as provided in this Section 5.
(d) Certificate as to Adjustments. In the event of adjustment
as herein provided in paragraphs of this Section 5, the Company shall promptly
mail to each Warrant holder a certificate setting forth the Exercise Price and
number of Common Shares issuable upon exercise after such adjustment and setting
forth a brief statement of facts requiring such adjustment. Such certificate
shall also set forth the kind and amount of shares or other securities or
property into which the Warrants shall be exercisable after any adjustment of
the Exercise Price as provided in this Agreement.
(e) Minimum Adjustment. Notwithstanding the foregoing, no
certificate as to adjustment of the Exercise Price hereunder shall be made if
such adjustment results in a change in the Exercise Price then in effect of less
than five cents ($0.05) and any adjustment of less than five cents ($0.05) of
any Exercise Price shall be carried forward and shall be made at the time of and
together with any subsequent adjustment that, together with the adjustment or
adjustments so carried forward, amounts to five cents ($0.05) or more; provided
however, that upon the exercise of a Warrant, the Company shall have made all
necessary adjustments (to the nearest cent) not theretofore made to the Exercise
Price up to and including the date upon which such Warrant is exercised.
6. Registration Rights.
(a) Shelf Registration of the Common Stock. Until
_______________, 2003, the Company agrees to file with the Securities and
Exchange Commission (the "Commission") at the Company's expense a shelf
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registration statement under Rule 415 of the Securities Act (a "Registration
Statement"), or any similar rule that may be adopted by the Commission, covering
the resale of the Warrants and all of the Common Shares that may be issued upon
exercise of the Warrants ("Warrant Shares") in the event that holders of at
least 50,000 Warrants (or Warrant Shares) request such registration; provided
however, that only the first such registration shall be at the Company's
expense. The holders of Warrants and/or Warrant Shares may also request
"piggyback" registration of their Warrants and Warrant Shares at the Company's
expense for a period ending ________________, 2005. Upon any of such requests,
the Company will:
(i) provide written notice (the "Notice") of
such request within 10 days of the receipt of such request to each holder of
Warrants and/or Warrant Shares not a party to the request;
(ii) use its best efforts to have such Registration
Statement declared effective and to keep it effective for a period of 180 days
(the "Effective Period");
(iii) give each holder of Warrants and/or Warrant
Shares, their underwriters, if any, and their counsel and accountants a
reasonable opportunity to participate in the preparation of the
Registration Statement and give such persons reasonable access to its
books, records, officers and independent public accountants;
(iv) furnish to each holder of Warrants and/or
Warrant Shares such numbers of copies of prospectuses, and supplements or
amendments thereto, and such other documents as such holder reasonably requests;
(v) register or qualify the securities covered
by the Registration Statement under the securities or blue sky laws of such
jurisdictions within the United States as any holder of Warrants and/or Warrant
Shares shall reasonably request, and do such other reasonable acts and things
as may be required of it to enable such holders to consummate the sale or other
disposition in such jurisdictions of the Warrants and/or Warrant Shares;
provided, however, that the Company shall not be required to (i) qualify as a
foreign corporation or consent to a general or unlimited service or process
in any jurisdictions in which it would not otherwise be required to be
qualified or so consent or (ii) qualify as a dealer in securities;
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(vi) furnish, at the request of the holders of
Warrants and/or Warrant Shares, on the date Redemption Shares are delivered to
the Underwriters for sale pursuant to such registration, or, if such Warrants
and/or Warrant Shares are not being sold through underwriters, on the date the
Registration Statement with respect to such Warrants and/or Warrant Shares
becomes effective, (A) a securities opinion of counsel representing the
Company for the purposes of such registration covering such legal matters
as are customarily included in such opinions and (B) letters of the firm of
independent public accountants that certified the financial statements
included in the Registration Statement, addressed to the underwriters,
covering substantially the same matters as are customarily covered in
accountants' letters delivered to underwriters in underwritten public
offerings of securities and such other financial matters as such holders (or the
underwriters, if any) may reasonably request;
(vii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission;
(vii) enter into and perform an underwriting
agreement with the managing underwriter, if any, selected as provided herein,
containing customary (A) terms of offer and sale of the securities, payment
provisions, underwriting discounts and commissions and (B) representations,
warranties, covenants, indemnities, terms and conditions; and
(ix) keep the holders of the Warrants and/or
Warrant Shares advised as to the initiation and progress of the registration.
The Company further agrees to supplement or make amendments to each
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or rules and regulations thereunder for such Registration Statement.
Notwithstanding the foregoing, if for any reason the effectiveness of a
Registration Statement is delayed or suspended or it ceases to be available for
sales of Warrants and/or Warrant Shares thereunder, the Effective Period shall
be extended by the aggregate number of days of such delay, suspension or
unavailability.
(b) Listing on Securities Exchange. If the Company shall list
or maintain the listing of any Common Shares on any securities exchange or
national market system, it will at its expense and as necessary to permit the
registration and sale of the Warrants and/or Warrant Shares hereunder, list
thereon, maintain and, when necessary, increase such listing to include such
Warrants and/or Warrant Shares.
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(c) Registration Not Required. Notwithstanding the foregoing,
the Company shall not be required to file or maintain the effectiveness of a
registration statement relating to Warrants and/or Warrant Shares after the
first date upon which, in the opinion of counsel to the Company, all of the
Warrants and/or Warrant Shares covered thereby could be sold by the holders
thereof in any period of three months pursuant to Rule 144 under the Securities
Act, or any successor rule thereto.
(d) Allocation of Expenses. Subject to the limitation
described in Section 6(a) above, the Company shall pay all expenses in
connection with the Registration Statement, including without limitation (i) all
expenses incident to filing with the National Association of Securities Dealers,
Inc., (ii) registration fees, (iii) printing expenses, (iv) accounting and legal
fees and expenses, except to the extent holders of Warrants and/or Warrant
Shares elect to engage accountants or attorneys in addition to the accountants
and attorneys engaged by the Company, (v) accounting expenses incident to or
required by any such registration or qualification and (vi) expenses of
complying with the securities or blue sky laws of any jurisdictions in
connection with such registration or qualification; provided, however, the
Company shall not be liable for (A) any discounts or commissions to any
underwriter or broker attributable to the sale of Warrants and/or Warrant
Shares, or (B) any fees or expenses incurred by holders of Warrants and/or
Warrant Shares in connection with such registration that, according to the
written instructions of any regulatory authority, the Company is not permitted
to pay.
(e) Indemnification.
(i) In connection with the Registration
Statement, the Company agrees to indemnify holders of Warrants and/or Warrant
Shares within the meaning of Section 15 of the Securities Act, against all
losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) caused by any untrue, or alleged untrue, statement of
a material fact contained in the Registration Statement, preliminary
prospectus or prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or caused by any omission
or alleged omission, to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are caused
by any untrue statement, alleged untrue statement, omission, or alleged omission
based upon information furnished to the Company by the
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holders of Warrants and/or Warrant Shares expressly for use therein. The Company
and each officer, director and controlling person of the Company shall be
indemnified by each holder of Warrants and/or Warrant Shares covered by the
Registration Statement for all such losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) caused by any such
untrue, or alleged untrue, statement or any such omission, or alleged omission,
based upon information furnished to the Company by the holders of Warrants
and/or Warrant Shares expressly for use therein in a writing signed by the
holder.
(ii) Promptly upon receipt by a party indemnified
under this Section 6(e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this Section 6(e), such indemnified
party shall notify the Company in writing of the commencement of such action,
but the failure to so notify the Company shall not relieve it of any
liability that it may have to any indemnified party otherwise than under
this Section 6(e) unless such failure shall materially adversely affect the
defense of such action. In case notice of commencement of any such action shall
be given to the Company as above provided, the Company shall be entitled to
participate in and, to the extent it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense of such action
at its own expense, with counsel chosen by it and reasonably satisfactory
to such indemnified party. The indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be paid by the indemnified party unless (i) the Company
agrees to pay the same, (ii) the Company fails to assume the defense of such
action with counsel reasonably satisfactory to the indemnified party or (iii)
the named parties to any such action (including any impleaded parties) have
been advised by such counsel that representation of such indemnified
party and the Company by the same counsel would be inappropriate under
applicable standards of professional conduct (in which case the Company shall
not have the right to assume the defense of such action on behalf of such
indemnified party). No indemnifying party shall be liable for any settlement
entered into without its consent.
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(f) Contribution.
(i) If for any reason the indemnification
provisions contemplated by Section 6(e) are either unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then the party that would otherwise be
required to provide indemnification or the indemnifying party (in either
case, for purposes of this Section 6(f), the "Indemnifying Party") in
respect of such losses, claims, damages or liabilities, shall contribute to the
amount paid or payable by the party that would otherwise be entitled to
indemnification or the indemnified party (in either case, for purposes of
this Section 6(f), the "Indemnified Party") as a result of such losses,
claims, damages, liabilities or expense, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party. In no
event shall any holder of Warrants and/or Warrant Shares covered by the
Registration Statement be required to contribute an amount greater than the
dollar amount of the proceeds received by such holder from the sale of Warrants
and/or Warrant Shares pursuant to the registration giving rise to the liability.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 6(f) were
determined by pro rata allocation (even if the holders or any underwriters
or all of them were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
or entity determined to have committed a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(iii) The contribution provided for in this Section
6(f) shall survive the termination of this Agreement and shall remain in
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full force and effect regardless of any investigation made by or on behalf of
any Indemnified Party.
7. Restrictive Legend. Executed copies of this Agreement shall be filed
in the principal office of the Company. Instruments evidencing all or part of
the Warrants shall contain the legend shown on Exhibit A until _______________,
1999, after which time such legend may be removed at the request of the holder
thereof.
8. Successors and Assigns; Binding Effect. This Agreement shall be
binding upon and inure to the benefit of you and the Company and their
respective successors and permitted assigns.
9. Notices. Any notice hereunder shall be given by registered or
certified mail, if to the Company, at its principal office referred to in
Section 5 and, if to the holders, to their respective addresses shown in the
Warrant ledger of the Company, provided that any holder may at any time on three
(3) days' written notice to the Company designate or substitute another address
where notice is to be given. Notice shall be deemed given and received after a
certified or registered letter, properly addressed with postage prepaid, is
deposited in the U.S. mail.
10. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the remainder of this
Agreement.
11. Assignment; Replacement of Warrants. The Warrants may be sold,
transferred, assigned, pledged or hypothecated by you prior to ______________,
1999 only to bona fide officers of Xxxxxxxx & Xxxxxxxxx, Incorporated, who in
turn shall be subject to the same restriction. If the Warrant or Warrants are
assigned, in whole or in part, the Warrants shall be surrendered at the
principal office of the Company, and thereupon, in the case of a partial
assignment, a new Warrant shall be issued to the holder thereof covering the
number of shares not assigned, and the assignee shall be entitled to receive a
new Warrant covering the number of shares so assigned. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and appropriate bond or indemnification protection,
the Company shall issue a new Warrant of like tenor.
12. Rights of Shareholders. Until exercised, the Warrants shall
not entitle the holders thereof to any of the rights of a shareholder of the
Company.
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13. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Virginia without giving effect
to the principles of choice of laws thereof.
14. Definition. All references to the word "you" in this Agreement
shall be deemed to apply with equal effect to any persons or entities to whom
Warrants have been transferred in accordance with the terms hereof, and, where
appropriate, to any persons or entities holding Common Shares issuable upon
exercise of Warrants.
15. Headings. The headings herein are for purposes of reference only
and shall not limit or otherwise affect the meaning of any of the provisions
hereof.
Very truly yours,
HERSHA HOSPITALITY TRUST
By: _____________________________
Xxxx X. Xxxx
Chief Executive Officer
Accepted as of the ____ day of _____________, 1998.
XXXXXXXX & STRUDWICK, INCORPORATED
By: _________________________________
X. XxXxxxxx Xxxxx, III
Senior Vice President
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EXHIBIT A
No. _________
250,000 Shares
HERSHA HOSPITALITY TRUST
COMMON SHARES PURCHASE WARRANT
THIS IS TO CERTIFY that XXXXXXXX & XXXXXXXXX, INCORPORATED or its
assigns as permitted in that certain Warrant Agreement (the "Warrant Agreement")
dated ________________, 1998 between the Company (as hereafter defined) and
Xxxxxxxx & Strudwick, Incorporated is entitled to purchase at any time or from
time to time on or after ______________, 1999 until 5:00 p.m., Richmond,
Virginia time on ______________, 2003, 250,000 shares of Common Shares of Hersha
Hospitality Trust, a ______________________ (the "Company"), for an exercise
price per share as set forth in the Warrant Agreement referred to herein. This
Warrant is issued pursuant to the Warrant Agreement, and all rights of the
holder of this Warrant are further governed by, and subject to the terms and
provisions of such Warrant Agreement, copies of which are available upon request
to the Company. The holder of this Warrant and the shares issuable upon the
exercise hereof shall be entitled to the benefits, rights and privileges and
subject to the obligations, duties and liabilities provided in the Warrant
Agreement.
UNTIL ________________, 1999, NEITHER XXXXXXXX & XXXXXXXXX,
INCORPORATED NOR ANY ASSIGNEE OF ALL OR A PORTION OF THE RIGHTS PURSUANT TO THIS
WARRANT MAY SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE ANY OF ITS RIGHTS
PURSUANT TO THIS WARRANT OTHER THAN TO BONA FIDE OFFICERS OF XXXXXXXX &
STRUDWICK, INCORPORATED.
Subject to the provisions of the Securities Act of 1933, of the Warrant
Agreement and of this Warrant, this Warrant and all rights hereunder are
transferable, in whole or in part, only to the extent expressly permitted in
such documents and then only at the office of the Company at Hersha Hospitality
Trust, 000 Xxxxxxxx Xxxxx, Xxx X, Xxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Chief Executive Officer, by the holder hereof or by a duly authorized
attorney-in-fact, upon surrender of this Warrant duly endorsed, together with
the Assignment hereof duly endorsed. Until transfer hereof on the books of the
Company, the Company may treat the registered holder hereof as the owner hereof
for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and its seal to be hereunto affixed by its proper officers thereunto duly
authorized.
HERSHA HOSPITALITY TRUST
By: ____________________(SEAL)
Xxxx X. Xxxx
Chief Executive Officer
ATTEST:
__________________________
Secretary
EXHIBIT B
FORM OF SUBSCRIPTION
To Hersha Hospitality Trust:
The undersigned, the holder of Warrant Number , hereby irrevocably
elects to exercise the purchase right represented by such Warrant, and to
purchase thereunder * Common Shares of Hersha Hospitality Trust and herewith
makes a payment in cash or by check of $ thereof and requests that the
certificate or certificates for such shares be issued in the name of and
delivered to the undersigned. The undersigned acknowledges and agrees that the
Common Shares to be received by the undersigned are subject to the restrictions
on transfer set forth in the Warrant.
________________________________________
(Signature)
________________________________________
________________________________________
(Address)
Dated: _______________
*Insert here the number of shares set forth on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment (which
adjustment will be made in the issuance of such Common Shares, other shares,
securities, property, or cash) for additional Common Shares or any other shares
or other securities or property or cash that, pursuant to the adjustment
provisions of the Warrant, is deliverable upon exercise.
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto ________________the right represented by Warrant Number to
purchase Common Shares of Hersha Hospitality Trust to which the attached
Warrant related, and appoints _______________________ as Attorney-in-Fact to
transfer such right on the books of Hersha Hospitality Trust with the full
power of substitution in the premises.
The undersigned represents and warrants that the transfer of the
attached Warrant is permitted by the terms of the Warrant Agreement pursuant to
which the attached Warrant has been issued, and the transferee hereof, by
acceptance of this Assignment, agrees to be bound by the terms of the Warrant
Agreement with the same force and effect as if a signatory thereto.
________________________________________
(Signature)
________________________________________
________________________________________
(Address)
Dated: _____________________
