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EXHIBIT 4.3
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CROWN AMERICAN REALTY TRUST
AND
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as Warrant Agent
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Warrant Agreement
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Dated as of__________ _ , 1997
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TABLE OF CONTENTS
Page
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PARTIES.................................................. 1
RECITALS................................................. 1
SECTION 1. Appointment of Warrant Agent............................. 1
SECTION 2. Warrant Certificates..................................... 1
SECTION 3. Execution and Countersignature
of Warrant Certificates................................. 1
SECTION 4. Registration; Transfers and Exchanges.................... 2
SECTION 5. Duration and Exercise of Warrants........................ 3
SECTION 6. Optional Reduction of Exercise Price..................... 4
SECTION 7. Payment of Taxes......................................... 5
SECTION 8. Adjustment of Exercise Price, Number
of Shares Purchasable and Number of Warrants............ 5
SECTION 9. Fractional Warrants and Fractional Shares................ 9
SECTION 10. Notices to Warrant Holders;
No Rights as Shareholders............................... 10
SECTION 11. Merger, Consolidation or Change of
Name of Warrant Agent................................... 12
SECTION 12. Warrant Agent............................................ 12
SECTION 13. Change of Warrant Agent.................................. 14
SECTION 14. Issuance of New Warrant Certificates..................... 15
SECTION 15. Notices to Company and Warrant Agent..................... 15
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SECTION 16. Supplements and Amendments............................... 16
SECTION 17. Successors............................................... 16
SECTION 18. Termination.............................................. 16
SECTION 19. Governing Law............................................ 16
SECTION 20. Benefits of This Agreement............................... 16
SECTION 21. Headings and Table of Contents........................... 17
SECTION 22. Counterparts............................................. 17
TESTIMONIUM ......................................................... 17
SIGNATURES AND SEALS................................................... 17
EXHIBIT A. Form of Warrant Certificate.............................. A-1
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WARRANT AGREEMENT, dated as of ________ __, 1997 (this
"Agreement"), between CROWN AMERICAN REALTY TRUST, a Maryland real estate
investment trust (the "Company"), and__________________________ , a
__________________ (herein, with any successor, called the "Warrant Agent").
WHEREAS,the Company proposes to issue and sell to underwriters
represented by _________________(the "Representative") ___ Common Share Warrants
(collectively the "Warrants") each entitling the holder to purchase one Common
Share, without par value, of the Company (the "Common Shares"; as used
hereinafter the term "Shares" refers to the Common Shares and of any shares of
the Company of any other class into which such Common Shares may hereafter be
changed); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance of certificates evidencing the Warrants (the
"Warrant Certificates") and other matters as provided herein.
In consideration of the premises and the mutual agreements
herein set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company appoints
the Warrant Agent to act as agent for the Company in accordance with the
provisions of this Agreement, and the Warrant Agent accepts such appointment.
SECTION 2. Warrant Certificates. The Warrant Certificates
(and the Form of Exercise and Assignment to be set forth on the reverse
thereof) shall be substantially in the form set forth in Exhibit A attached
hereto. The Warrant Certificates may contain such insertions, omissions,
substitutions and other variations as the Company and the Warrant Agent
determine and are permitted by this Agreement. The Warrant Certificates shall
be printed, lithographed or engraved and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any rule or
regulation of any share exchange or quotation system on which the Warrants may
be listed or included, as the case may be, or to conform to usage.
SECTION 3. Execution and Countersignature of Warrant
Certificates. The President of the Company shall execute the Warrant
Certificates on behalf of the Company, and the official seal of the Company
(which may be in facsimile form) shall be reproduced on the Warrant
Certificates and attested by the Secretary or an Assistant Secretary of the
Company. The signatures of the President and of the Secretary or an Assistant
Secretary on any Warrant Certificate may be manual or facsimile. Warrant
Certificates may bear the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company
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notwithstanding that such individuals, or any of them, ceased to be such
officers prior to the countersignature and delivery of such Warrant Certificate
or were not such officers at the date of this Agreement.
An authorized officer of the Warrant Agent shall countersign
each Warrant Certificate by manual signature and no Warrant Certificate shall
be valid for any purpose unless so countersigned. The Warrant Agent is hereby
authorized to countersign Warrant Certificates for issuance pursuant to the
provisions of this Agreement.
The Warrant Agent shall date each Warrant Certificate the
date of its countersignature by the Warrant Agent.
SECTION 4. Registration; Transfers and Exchanges. The Company
shall maintain (i) a register for the registration of the Warrant Certificates
and of their transfer from time to time (the "Warrant Register") at the
principal corporate trust office of the Warrant Agent in ______________ and (ii)
an office or agency in ________________ (which shall be initially the office of
the Warrant Agent located at ___________________________________ --mailing
address: ___________________________ ) where Warrants may be surrendered for
exercise, transfer or denominational exchange.
The Company and the Warrant Agent may deem and treat the
registered holder of each Warrant Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof, any distribution to the
holder thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
Each Warrant Certificate shall be transferable, in whole or
in part (in whole Warrants), on the Warrant Register, upon surrender of the
Warrant Certificate at an office or agency maintained for such purpose by the
Company, duly endorsed by, or otherwise accompanied by a written assignment in
form satisfactory to the Company and the Warrant Agent duly executed by, the
registered holder thereof or his duly authorized attorney, with the signature
thereon guaranteed by a bank or trust company having an office or correspondent
in the United States or by a broker or dealer that is a member of a registered
securities exchange or the National Association of Securities Dealers, Inc.,
together with funds to pay any transfer, documentary, stamp or other taxes or
government charges payable in connection with such transfer and any other
amounts required pursuant to the Warrant Certificate. Upon such surrender and
payment, the Warrant Agent shall countersign and deliver a new Warrant
Certificate, in the name of the assignee and in a permissible denomination or
denominations (in whole Warrants) specified in such instrument of assignment.
If less than all of the Warrant Certificate is being transferred, the Warrant
Agent shall countersign and deliver a new Warrant Certificate or Certificates
for the portion of the Warrant Certificate not being transferred. The Warrant
Agent shall cancel the Warrant Certificate surrendered.
A Warrant Certificate may be divided or combined with other
Warrant Certificates of other denominations upon surrender thereof at an office
or agency maintained by
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the Company for such purpose, together with a written notice specifying the
names and denominations (in whole Warrants) in which new Warrant Certificates
are to be issued, signed by the registered holder thereof or his duly authorized
attorney, together with the funds to pay any transfer, documentary, stamp, or
other taxes or government charges payable in connection with such transfer and
any other amounts required pursuant to the Warrant Certificate. Upon such
surrender and payment, a new Warrant Certificate or Certificates representing a
like aggregate number of Warrants shall be issued and delivered in accordance
with such notice. The Warrant Agent shall cancel the Warrant Certificate
surrendered.
If any Warrant Certificate at any time becomes mutilated,
lost, stolen or destroyed, the Company will issue, and the Warrant Agent will
countersign, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and in substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of
like tenor and representing an equivalent number of Warrants, but only upon
receipt of evidence satisfactory to the Company and the Warrant Agent of such
loss, theft or destruction of such Warrant Certificate and indemnity
satisfactory to each of them. Applicants for such substitute Warrant
Certificates must also comply with such other regulations and pay such other
charges as the Company or the Warrant Agent may prescribe.
The Company shall make no service or other charge in
connection with any transfer or exchange of Warrant Certificates, except for
any transfer, documentary, stamp, or other taxes or government charges payable
in connection therewith and any other amounts permitted hereby (including any
charges for the issuance of Warrant Certificates in exchange for or in lieu of
Warrant Certificates that become mutilated, destroyed, stolen or lost, as
provided above).
The Warrant Agent shall not countersign Warrant Certificates
in advance of requests for new Warrant Certificates. The Warrant Agent shall
hold any Warrant Certificates cancelled in accordance with the Warrant Agent's
standard procedures.
SECTION 5. Duration and Exercise of Warrants. The Warrants
shall expire at 5:00 p.m., prevailing local time in Pittsburgh, PA on _______
__, ____(the "Expiration Date"), and after such time unexercised Warrants will
be wholly void and of no value. Each Warrant may be exercised on any business
day on or prior to the Expiration Date.
Subject to the provisions of this Agreement, the holder of
each Warrant shall have the right to purchase from the Company (and the Company
shall as soon as practicable, subject to Section 8(g), issue and sell to such
holder) one fully paid and nonassessable Share at the exercise price (the
"Exercise Price") at the time in effect hereunder, upon surrender at an office
or agency maintained by the Company for such purpose of the Warrant Certificate
evidencing such Warrant, with the Form of Exercise on the reverse thereof
properly completed and executed by the holder or his duly authorized attorney
with the signature thereon guaranteed by a bank or trust company having an
office or correspondent in the United States or by a broker or dealer that is a
member of a registered securities exchange or the National Association of
Securities Dealers, Inc., and upon payment of the Exercise Price in lawful
money of the United States of America in
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cash or by certified or cashier's check payable to the order of the Company. The
Exercise Price, as of the initial issuance of the Warrants, shall be $ per
Share. The Exercise Price, the number of Shares, and the kind of securities or
other property purchasable upon exercise of a Warrant shall be subject to
adjustment as provided in Section 8.
Subject to Section 7, (a) upon such surrender of a Warrant
Certificate and payment of the Exercise Price at the time in effect hereunder,
the Warrant Agent shall deliver the Warrant Certificate to the transfer agent
for the Shares, and said transfer agent shall cause to be issued and delivered
to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate,
a certificate for the Share or Shares issuable upon the exercise of the Warrant
or Warrants evidenced by such Warrant Certificate, and (b) such certificate
shall be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become the holder of record of such Share or
Shares as of the date of the surrender of such Warrant Certificate and payment
of the Exercise Price.
The Warrants evidenced by a Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time for part only (consisting of whole Warrants
evidenced by the Warrant Certificate). In the event that less than all of the
Warrants evidenced by a Warrant Certificate surrendered upon the exercise of
Warrants are exercised, the Warrant Agent and the Company shall cause a new
Warrant Certificate or Certificates to be issued for the remaining number of
Warrants evidenced by the Warrant Certificate so surrendered. The Warrant Agent
shall cancel all Warrant Certificates surrendered upon exercise of Warrants.
The Warrant Agent shall deposit to the account of the Company
all monies received by the Warrant Agent in payment of the Exercise Price of
any Warrant. The Warrant Agent shall account promptly to the Company with
respect to the exercise of Warrants.
SECTION 6. Optional Reduction of Exercise Price. The Company
shall have the right, at any time or from time to time, voluntarily to reduce
the then current Exercise Price to such amount (the "Reduced Exercise Price")
and for such period or periods of time not less than 20 days in length, which
may be through the close of business on the Expiration Date (the "Reduced
Exercise Price Period"), as may be deemed appropriate by the Board of Trustees
of the Company. Notice of any such Reduced Exercise Price and Reduced Exercise
Price Period shall be given to the registered holders of Warrants in the manner
provided in Section 10 and to the Warrant Agent in the manner provided in
Section 15. After the termination of the Reduced Exercise Price Period, the
Exercise Price shall be such Exercise Price as would have been in effect, as
adjusted pursuant to Section 8, had there been no reduction in the Exercise
Price pursuant to the provisions of this Section 6. Any adjustment in the
Exercise Price pursuant to Section 8 during the Reduced Exercise Price Period
shall not be made in the Reduced Exercise Price in the manner specified in
Section 8 except to the extent that such reduction in the Exercise Price
pursuant to Section 8 would result in an Exercise Price lower than the then
current Reduced Exercise Price. No reduction of the then current Exercise Price
pursuant to the provisions of this Section 6 shall be deemed for the purposes
of Section 8 hereof to require any adjustment in the
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Exercise Price, the number of Shares purchasable upon the exercise of Warrants
or in the number of Warrants.
SECTION 7. Payment of Taxes. The Company shall pay
documentary stamp taxes, if any, imposed under the laws of the United States of
America attributable to the initial issuance of the Warrants, but it shall not
be required to pay any such taxes imposed on Warrant Certificates issued
pursuant to transfers or exchanges or under other circumstances covered in
Section 4.
The Company shall not be required to pay any tax or taxes or
government charge that may be payable in respect of any issuance of any
certificates for Shares purchased on exercise of a Warrant. The Company shall
not be required to, and the Warrant Agent (unless the Company otherwise directs
in writing) shall not, issue or deliver such certificates unless or until the
persons requesting the issuance thereof shall have paid to the Company the
amount of any such tax or government charge or shall have established to the
satisfaction of the Company that any such tax or government charge has been
paid.
SECTION 8. Adjustment of Exercise Price, Number of Shares
Purchasable and Number of Warrants. The Exercise Price and either the number of
Shares purchasable upon the exercise of each Warrant or the number of Warrants
outstanding are subject to adjustment from time to time as provided in this
Section 8.
(a) In case the Company shall at any time after the date of
this Agreement (i) declare a dividend on the Shares in Shares, (ii) subdivide
the outstanding Shares or (iii) combine the outstanding Shares into a smaller
number of Shares, the Exercise Price to be in effect after the time of the
record date for such dividend or of the effective date of such subdivision or
combination shall be determined by multiplying the Exercise Price in effect
immediately prior to such time by a fraction, the numerator of which shall be
the number of Shares outstanding immediately prior to such time and the
denominator of which shall be the number of Shares to be outstanding
immediately after giving effect to such dividend, subdivision or combination.
Such adjustment shall be made successively whenever any event listed above
shall occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of Shares entitling them to
subscribe for or purchase Shares (or securities convertible into Shares) at a
price per Share (or having a conversion price per Share, if a security
convertible into Shares) less than the current market price per Share (as
defined in subsection (d) of this Section 8) on such record date, the Exercise
Price to be in effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Shares outstanding on
such record date plus the number of Shares which the aggregate offering price
of the total number of Shares so to be offered (or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price and the denominator of which shall be the number
of Shares outstanding on such record date plus the number of additional Shares
to be offered for subscription or purchase (or into which the convertible
securities so to be offered are
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initially convertible). In case such subscription or purchase price may be paid
in consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Trustees of the Company. Shares owned by or held for the account of the Company
or any majority-owned subsidiary of the Company shall not be deemed outstanding
for the purpose of any such computation. Any such adjustments shall be made
successively whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such record date had
not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing Company but not including any merger or consolidation
covered by subsection (j) of this Section 8) of its shares (other than Shares),
evidences of its indebtedness, or assets (other than (i) dividends or
distributions in cash payable out of earnings or retained earnings, (ii)
dividends or distributions of evidences of indebtedness or assets or the
Company's shares other than Shares that are payable out of and do not exceed in
current market value the amount of earnings or retained earnings, and (iii)
dividends or distributions that are also available to holders of Warrants upon
the exercise of Warrants as though the Warrants had been exercised prior to
such record date) or subscription rights or warrants (excluding those referred
to in subsection (b) of this Section 8), the Exercise Price to be in effect
after such record date shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the current market price per Share (as defined in subsection (d)
of this Section 8) on such record date, less the fair market value (as
determined in good faith by the Board of Trustees of the Company) of the
portion of such shares, evidences of indebtedness, assets, subscription rights
or warrants applicable to one Share, and the denominator of which shall be such
current market price per Share (as defined in subsection (d) of this Section
8). Any such adjustments shall be made successively whenever such a record date
is fixed, and in the event that such distribution is not so made, the Exercise
Price shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b)
or (c) of this Section 8, the current market price per Share on any record date
shall be deemed to be the average of the daily closing prices per Share for the
ten consecutive New York Stock Exchange trading days before such record date.
For the purpose of all relevant provisions of this Agreement, the closing price
for each day shall be the last sale price regular way or, in case no such sale
takes place on such day, the average of the closing bid and asked prices
regular way, in either case as reported for the New York Stock Exchange
Composite Transactions, or, if the Shares are not listed or admitted to trading
on any national securities exchange, the average of the highest reported bid
and lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. (the "NASD") through the NASD's Automated Quotation
System ("NASDAQ") or a similar organization if NASDAQ is no longer reporting
such information. If on any such New York Stock Exchange trading day the Shares
are not quoted by any such organization, the fair market value of such Shares
on such day, as determined by the Board of Trustees of the Company, shall be
deemed to be the current market price.
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(e) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
8 shall be made to the nearest cent or to the nearest one-hundredth of a Share
as the case may be.
(f) In the event that at any time, as a result of an
adjustment made pursuant to this Section 8, the holder of any Warrant
thereafter exercised shall become entitled to receive any shares of the Company
other than Common Shares, the Exercise Price and the number of such other
shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable, in the judgment of the Company, to the provisions with respect to
the Shares contained in this Section 8, and the provisions of this Section 8
and Sections 5, 6, 7 and 9 with respect to the Shares shall apply on like terms
to any such other shares.
(g) In any case in which this Section 8 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing of the Shares to the holder of any Warrant exercised on or
after such record date; provided, however, that the Company shall deliver to
such holder a due xxxx or other appropriate instrument evidencing, subject to
the following proviso, such holder's right to receive such additional Shares
upon the occurrence of the event requiring such adjustment, and, provided
further, to the extent such event does not occur, the adjustment made in
respect of such non-occurrence shall be retroactive to such record date and
affect all Warrants exercised between such record date and the date of such
non-occurrence.
(h) Upon each adjustment of the Exercise Price pursuant to
subsection (a) or (b) of this Section 8, each Warrant outstanding immediately
prior to such adjustment shall thereafter constitute the right to purchase, at
the adjusted Exercise Price per share, an adjusted number of Shares determined
(to the nearest hundredth) by multiplying the number of Shares purchasable upon
exercise of a Warrant immediately prior to such adjustment by a fraction, the
numerator of which shall be the Exercise Price in effect immediately prior to
such adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment; provided, however, that the Company
may elect, in substitution for the adjustment in the number of Shares pursuant
to this subsection (h), to adjust the number of Warrants pursuant to subsection
(i) of this Section 8.
(i) In substitution for any adjustment in the number of
Shares purchasable upon the exercise of a Warrant as provided in subsection (h)
of this Section 8, the Company may elect to adjust the number of Warrants so
that each Warrant outstanding after such adjustment in number of Warrants shall
be exercisable for one Share. Each Warrant held of record immediately prior to
such adjustment of the number of Warrants shall become that number of Warrants
determined (to the nearest hundredth) by multiplying the number of Shares
purchasable
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upon exercise of a Warrant immediately prior to such adjustment by a fraction,
the numerator of which shall be the Exercise Price in effect immediately prior
to such adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment. The Company shall make a public
announcement (by news release and by notice to any share exchange or quotation
system on which the Warrants are then listed or included) and give notice to the
Warrant Agent of its election to adjust the number of Warrants, indicating the
record date for the adjustment and, if known at the time, the amount of the
adjustment to be made in the number of Warrants. This record date may be the
date on which the Exercise Price is adjusted or any day thereafter, but shall be
at least two days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this subsection (i), the
Company and the Warrant Agent shall, as promptly as practicable, cause to be
distributed to holders of record of Warrant Certificates on such record date
Warrant Certificates evidencing, subject to Section 9, the additional Warrants
to which such holders shall be entitled as a result of such adjustment or, at
the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and, upon surrender thereof if required
by the Company, new Warrant Certificates evidencing all the Warrants to which
such holders shall be entitled after such adjustment. Warrant Certificates to be
so distributed may, at the option of the Company, bear the adjusted Exercise
Price and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(j) In case of any capital reorganization, recapitalization,
reclassification of outstanding Shares (other than a subdivision or combination
covered by subsection (a) of this Section 8), or merger or consolidation of the
Company with any other corporation (any of such events being hereinafter
referred to as a "Corporate Reorganization"), in which Shares outstanding
immediately prior to such Corporate Reorganization shall be converted into,
exchangeable for, or converted into the right to receive, any consideration
other than the same number of Shares so held immediately prior thereto, then,
as a condition to such Corporate Reorganization, each Warrant shall, after such
Corporate Reorganization, be exercisable at the then Exercise Price and upon
the other terms and conditions specified in this Agreement for the number of
shares or other securities or assets (which may be cash) to which a holder of
the number of Shares purchasable (at the time of such Corporate Reorganization)
upon the exercise of such Warrant would have been entitled (other than pursuant
to any applicable dissenters rights of appraisal) upon such Corporate
Reorganization; and, in any such case, the provisions set forth in this Section
8 with respect to the rights and interests thereafter of the holders of the
Warrants shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares, other securities or assets thereafter
deliverable on the exercise of the Warrants. The Company shall not effect any
consolidation or merger unless, prior to or simultaneously with the
consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or other appropriate corporation or
entity (other than the Company) shall assume, by written instrument executed
and delivered to the Warrant Agent, the obligation to deliver to the holder of
each Warrant such shares, securities or assets (including cash) as, in
accordance with the foregoing provisions, such holders may be entitled to
receive and to assume the other obligations of the Company under this Warrant
Agreement. The Board of Trustees of the Company, acting in good faith, shall
determine the acceptability of any such instrument.
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(k) Except as provided in this Section 8, no adjustment in
respect of any dividends on the Shares shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(l) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same Exercise Price per share and number and kind of shares as are stated
on the Warrant Certificates initially or previously issuable pursuant to this
Agreement.
(m) Anything in this Section 8 to the contrary
notwithstanding, the Company shall be entitled to (but is not required to) make
such reductions in the Exercise Price or increase in the number of Shares
purchasable upon the exercise of each Warrant, in addition to those adjustments
required by this Section 8, as it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Shares, or any
issuance wholly for cash of any Shares at less than the current market price,
or any issuance wholly for cash of Shares or securities that by their terms are
convertible into or exchangeable for Shares, or any dividend, or any issuance
of rights, options or warrants referred to above in this Section 8, made by the
Company to its common shareholders shall not be taxable to them.
(n) Anything in this Section 8 to the contrary
notwithstanding, if the Company or any subsidiary of the Company grants options
or other rights to purchase Shares to any of its employees or directors, or if
such employees or directors otherwise receive Shares under any employee benefit
plan of, or compensation agreement or arrangement with, the Company or its
subsidiaries, or if the Company offers any dividend reinvestment plans, the
granting of such options or rights, the issuance of Shares on the exercise of
such options or other rights or pursuant to such plans, agreements or
arrangements, and subscriptions for purchases of Shares under any such dividend
reinvestment plan are not to be taken into consideration for adjustments under
this Section 8.
(o) Any determination that may be made by the Board of
Trustees of the Company under this Agreement may be made by a duly authorized
committee of the Board of Trustees.
SECTION 9. Fractional Warrants and Fractional Shares. (a) The
Company shall not issue fractions of Warrants to holders of Warrant
Certificates as a result of any adjustment in the number of Warrants pursuant
to subsection (i) of Section 8 or distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants, the Company shall
pay, at the time new Warrant Certificates are distributed to holders of
Warrants to reflect such adjustment in the number of Warrants, to the
registered holders of Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Warrant on the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable.
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The holders of Warrants, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
or a Warrant Certificate representing a fraction of a Warrant upon the
adjustment thereof in accordance with subsection (i) of Section 8 or otherwise.
(b) For purposes of Section 9(a), the current market value of
a Warrant shall be the closing price of the Warrant for the trading day
immediately prior to the date on which such fractional Warrant would have been
otherwise issuable. The closing price for any day shall be the last sale price
regular way or, in case no such sale takes place on such day, the average of
the closing bid and asked prices regular way, in either case on the principal
national securities exchange on which the Warrants are listed or admitted to
trading, or, if the Warrants are not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and
lowest reported asked prices as furnished by the NASD through NASDAQ or a
similar organization if NASDAQ is no longer reporting such information. If on
any such date the Warrants are not quoted by any such organization, the fair
market value of the Warrants on such date, as determined in good faith by the
Board of Trustees of the Company, shall be deemed to be the current market
value.
(c) The Company will not issue fractions of Shares upon
exercise of the Warrants or distribute Share certificates that evidence
fractional Shares. In lieu of fractional Shares, the Company shall pay to the
registered holders of Warrant Certificates at the time such Warrants are
exercised an amount in cash equal to the same fraction of the closing price of
the Shares on the trading day immediately prior to the date of such exercise,
determined as provided in the second and third sentences of subsection (d) of
Section 8.
SECTION 10. Notices to Warrant Holders; No Rights as
Shareholders. (a) Upon any adjustment of the Exercise Price or the number of
Warrants outstanding pursuant to Section 8, the Company within 20 days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate
signed by the President or a Vice President or the Treasurer of the Company, or
a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Trustees of the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price after such
adjustment and either the adjusted number of Shares (or fraction thereof)
purchasable upon exercise of a Warrant or the adjusted number of Warrants to be
outstanding and setting forth in reasonable detail the method of calculation
and the facts upon which the calculations are based, which certificate, if
rendered by independent public accountants, shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause notice of such
adjustment to be mailed by first-class mail, postage prepaid, to each
registered holder of a Warrant Certificate at his address appearing on the
Warrant Register. The Company may cause such notice to be mailed in advance of
any such adjustment and included as a part of any notice required to be mailed
under any other provision of this Section 10.
(b) Upon the fixing of a Reduced Exercise Price and Reduced
Exercise Price Period as provided in Section 6, the Company shall cause notice
of such Reduced Exercise Price and Reduced Exercise Price Period to be mailed
by first-class mail, postage prepaid, to each
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registered holder of a Warrant Certificate at his address appearing on the
Warrant Register not more than 45 days and not less than 20 days prior to the
beginning of the Reduced Exercise Price Period.
(c) In case:
(i) the Company shall authorize the issuance to all
holders of Shares, of rights or warrants to subscribe for or
purchase Shares or of any other subscription rights or
warrants; or
(ii) the Company shall authorize the distribution to
all holders of its shares (other than Shares), evidences of
its indebtedness or assets (other than (i) dividends or
distributions in cash payable out of earnings or retained
earnings, (ii) dividends or distributions of evidences of
indebtedness or assets or the Company's shares other than
Shares that are payable out of and do not exceed in current
market value the amount of earnings or retained earnings, and
(iii) dividends or distributions that are also available to
holders of Warrants upon the exercise of Warrants as though
the Warrants had been exercised prior to such record date);
or
(iii) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(iv) the Company proposes to take any other action
(other than actions of the character described in subsection
(a) of Section 8) that would require an adjustment of the
Exercise Price pursuant to Section 8;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be mailed to each registered holder of a Warrant Certificate at his address
appearing on the Warrant Register, at least 14 days prior to the applicable
record date hereinafter specified, by first-class mail, postage prepaid, a
written notice stating (A) the date as of which the holders of record of Shares
to be entitled to receive any such rights, warrants or distribution are to be
determined, or (B) the date on which any such dissolution, liquidation or
winding up or other action is expected to become effective, and the date as of
which it is expected that holders of record of Shares shall be entitled to
exchange their Shares for securities or other property, if any, deliverable
upon such dissolution, liquidation, winding up or other action. The failure to
give any notice required by this Section 10(c) or any defect therein shall not
affect the legality of any such issuance, distribution, dissolution,
liquidation, winding up or other action, or the vote upon any action.
(d) Nothing contained in this Agreement or in any of the
Warrant Certificates shall be construed as conferring upon the holders thereof
the right to vote or receive dividends or to be deemed for any purpose the
holder of Shares or of any other securities of the Company that may at any time
be issuable on the exercise of the Warrant Certificates, nor shall anything
contained herein or in the Warrant Certificates be construed to confer upon a
holder thereof, as such, any of the rights of a shareholder of the Company or
any right to vote on any matter
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15
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issue of shares,
reclassification of shares, change of par value, consolidation, merger,
conveyance, or, without limitation, otherwise) or to receive notice of meetings,
or to receive dividends or subscription rights or otherwise, until the Warrant
or Warrants evidenced by such Warrant Certificates shall have been exercised as
provided herein.
SECTION 11. Merger, Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall
be a party, or any corporation succeeding to the corporate trust business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Warrant Agent under the provisions of Section 13. In
case at the time any such successor to the Warrant Agent succeeds to the agency
created by this Agreement, any of the Warrant Certificates have been
countersigned but not delivered, such successor to the Warrant Agent may adopt
the countersignature of the original Warrant Agent; and, in case at that time
any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates either
in the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent is changed,
and any of the Warrant Certificates have not been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name, and in all such cases such Warrant Certificates shall have
the full force provided in the Warrant Certificates and in this Agreement.
SECTION 12. Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed on it by this Agreement, upon the following
terms and conditions, by all of which the Company and the holders of Warrants,
by their acceptance thereof, shall be bound:
(a) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation to
be agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse it for reasonable
out-of-pocket expenses, including reasonable legal fees,
incurred by the Warrant Agent in connection with the services
rendered hereunder by it. The Company agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss
or liability incurred without negligence or bad faith on the
part of the Warrant Agent arising out of or in connection
with its acting as the Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any
such claim of liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates the
Warrant Agent is acting solely as
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agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners
or holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it (who may be counsel to the
Company) and the written opinion of such counsel shall be
protection in respect of any action taken or omitted to be
taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel. The Warrant
Agent agrees promptly to provide a copy of such opinion to
the Company.
(d) Documents. Except as otherwise expressly
provided herein, the Warrant Agent shall be protected and
shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any Warrant
Certificate or notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been passed or
signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
affiliates, officers, directors and employees, may become the
owner of, or acquire any interest in, any Warrant
Certificate, with the same rights that it or they would have
if it were not the Warrant Agent hereunder. It or they may
engage or be interested in any financial or other transaction
with the Company and may act in any other capacity for the
Company, provided acting as such is acceptable to the
Company, as freely as if it were not Warrant Agent hereunder.
(f) No Responsibility for Representations. The
Warrant Agent shall not be responsible for any of the
recitals or representations contained in any of the Warrant
Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by
the Company.
(g) Limited Obligations. The Warrant Agent shall be
obligated to perform such duties and only such duties as are
herein or in the Warrant Certificates specifically set forth.
However, the Warrant Agent shall also be obligated to the
Company to conduct its operations in acting as Warrant Agent
in accordance with sound business practices. The Warrant
Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is
not reasonably assured to it, provided that prior to failing
to take such action it notifies the Company.
(h) No Responsibility for Adjustments. The Warrant
Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to
make or cause to be made any adjustment of the Exercise
Price, the number of the Shares or other securities or
property deliverable as provided in this Agreement, or the
number of Warrants, or to determine whether any facts exist
-13-
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that may require any of such adjustments, or with respect to
the nature or extent of any such adjustment, when made, or
with respect to the method employed in making the same. The
Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Shares or of
any securities or property that may at any time be issued or
delivered upon the exercise of any Warrant, or with respect
to whether any such Shares or other securities will when
issued be validly issued and fully paid and nonassessable,
and makes no representation with respect thereto.
(i) Reliance on Certificates of Officers. Whenever
in the performance of its duties under this Agreement, the
Warrant Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the
President or a Vice President or the Treasurer of the Company
and delivered to the Warrant Agent; and such certificate
shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(j) Compliance with Instructions. The Warrant Agent
is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the
President or a Vice President or the Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with the Warrant Agent's duties,
and it shall not be liable for any action taken or suffered
or omitted by it in good faith in accordance with written
instructions of any such officer.
SECTION 13. Change of Warrant Agent. (a) If the Warrant Agent
advises the Company that it is incapable of acting as Warrant Agent, or if the
Warrant Agent resigns as Warrant Agent (which it may do only upon 30 days'
prior written notice to the Company), the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within 30
days after it has been notified in writing of such incapacity or resignation by
the Warrant Agent, then the duties of the Warrant Agent shall be carried out by
the Company.
(b) The Company, in its discretion, shall be entitled to
remove the Warrant Agent with or without cause at any time specified in written
notice to the Warrant Agent, and the Company then shall carry out the duties of
the Warrant Agent or shall appoint a successor to the Warrant Agent.
(c) Any successor Warrant Agent appointed by the Company
shall be a bank or trust company, in good standing, incorporated under the laws
of a State or of the United States of America, and must have at the time of its
appointment as Warrant Agent a combined capital and surplus of at least
$100,000,000. After appointment, the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as
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Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the time
held by it hereunder and execute and deliver any further assurance, conveyance,
act or deed necessary for such purpose or requested by the Company.
(d) The Company shall cause notice of the appointment of any
successor Warrant Agent to be mailed by first-class mail, postage prepaid, to
each registered holder of a Warrant Certificate at his address appearing on the
Warrant Register. The Company's or Warrant Agent's failure to give any notice
provided for in this Section 13, or any defect therein, shall not, however,
affect the legality or validity of the appointment of a successor Warrant
Agent.
SECTION 14. Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or of the Warrant
Certificates to the contrary, the Company may, at its option, issue new Warrant
Certificates evidencing Warrants in such form as may be approved by its Board
of Trustees to reflect any adjustment or change in the Exercise Price and the
number or kind or class of shares or other securities or property purchasable
under the Warrant Certificates made in accordance with the provisions of this
Agreement. The Company may, at its option, require registered holders of
Warrants to surrender their old Warrant Certificates for any such new Warrant
Certificates.
SECTION 15. Notices to Company and Warrant Agent. Any notice
pursuant to this Agreement to be given by the Warrant Agent or by the
registered holder of any Warrant Certificate to the Company shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed to
the Company as follows:
Crown American Realty Trust
Xxxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention:____________________
(except that such notice shall be sent to such other address as the Company may
have subsequently furnished in writing to the Warrant Agent for this purpose).
Any notice pursuant to this Agreement to be given by the
Company or by any registered holder of any Warrant Certificate to the Warrant
Agent shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed to the Warrant Agent as follows:
____________________
____________________
____________________
Attention:__________________
(except that such notice shall be sent to such other address as the Warrant
Agent may have subsequently furnished in writing to the Company for this
purpose).
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SECTION 16. Supplements and Amendments. (a) The Company and
the Warrant Agent may from time to time supplement or amend this Agreement or
the provisions of the Warrant Certificates without the approval of any holders
of Warrant Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any provisions herein, or to make any other provisions in regard to
matters or questions arising hereunder that the Company and the Warrant Agent
deem necessary or desirable and that do not adversely affect the interests of
the holders of Warrant Certificates in any material respect.
(b) With the consent of the registered holders of at least a
majority in number of the Warrants at the time outstanding, the Company and the
Warrant Agent may at any time and from time to time by supplemental agreement
or amendment add any provisions to or change in any manner or eliminate any of
the provisions of this Agreement or the Warrants or of any supplemental
agreement or modify in any manner the rights and obligations of the Warrant
holders and of the Company; provided, however, that no such supplemental
agreement or amendment shall, without the consent of the registered holder of
each outstanding Warrant affected thereby:
(1) alter the provisions of this Agreement so as to affect
adversely the price at which or the period during which the Warrants are
exercisable; or
(2) reduce the number of Warrants outstanding the consent of
whose holders is required for any such supplemental agreement or amendment.
SECTION 17. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder. Without the written consent of the Company, the Warrant Agent may
not assign its rights and obligations hereunder except as provided in Section
13.
SECTION 18. Termination. This Agreement shall terminate at
the close of business 30 days after the Expiration Date. Notwithstanding the
foregoing, this Agreement will terminate on any earlier date when all Warrants
have been exercised or have been acquired by the Company. The provisions of
Section 12(a) shall survive such termination.
SECTION 19. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
SECTION 20. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this
Agreement, and this Agreement shall be for the sole and exclusive benefit of
the Company, the Warrant Agent and the registered holders of the Warrant
Certificates.
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SECTION 21. Headings and Table of Contents. The section and
subsection headings herein and the table of contents are for convenience only
and shall not affect the construction hereof.
SECTION 22. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
CROWN AMERICAN REALTY TRUST
By:__________________________________
Title:____________________________
[SEAL]
Attest:
__________________________________
Secretary
_____________________________________
By:__________________________________
Title:____________________________
[SEAL]
Attest:
__________________________________
Authorized Officer
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[FACE]
VOID AFTER 5:00 P.M., PITTSBURGH TIME,__________________ , ____
No. Warrants
CUSIP
CROWN AMERICAN REALTY TRUST
COMMON SHARE WARRANT
This Warrant Certificate certifies that ___________, or registered assigns, is
the registered holder of ____ Common Share Warrants (the "Warrants") expiring
______________, (the "Expiration Date") of CROWN AMERICAN REALTY TRUST, a
Maryland real estate investment trust (the "Company"). Each Warrant entitles the
holder to purchase from the Company, on or before the Expiration Date, one fully
paid and nonassessable Common Share, without par value (the "Common Share"), of
the Company at the exercise price (the "Exercise Price") at the time in effect
under the Warrant Agreement referred to on the reverse hereof ($________ per
share at the time of the initial issuance of the Warrants), payable in lawful
money of the United States of America, upon surrender of this Warrant
Certificate and payment of such Exercise Price at an office or agency maintained
by the Company for such purpose, but subject to the conditions set forth herein
and in the Warrant Agreement; provided, however, that the number or kind of
shares (or in certain events other property) purchasable upon exercise of the
Warrants and payment of the Exercise Price may as of the date of this Warrant
Certificate have been, or may after such date be, adjusted as a result of the
occurrence of certain events, as more fully provided in the Warrant Agreement.
Payment of the Exercise Price shall be made in cash or by certified or cashier's
check payable to the order of the Company and shall be accompanied by the Form
of Exercise on the reverse hereof properly completed by the holder.
No Warrant may be exercised after 5:00 p.m., prevailing local
time in Pittsburgh, Pennsylvania, on the Expiration Date.
The Company has appointed ____________________ as Warrant
Agent under the Warrant Agreement (__________________ and any successor or
successors under the Warrant Agreement being referred to herein as the "Warrant
Agent"). The Company has designated the offices of__________________________ at
______________________ as the initial office or agency at which this Warrant
Certificate may be surrendered for exercise, transfer or denominational
exchange.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent by the manual signature of one of its
authorized officers.
IN WITNESS WHEREOF, CROWN AMERICAN REALTY TRUST has caused
this Warrant Certificate to be duly executed under its official seal with the
facsimile signature of its President and attested to with the facsimile
signature of its Secretary.
[FACSIMILE SEAL]
Attest: CROWN AMERICAN REALTY TRUST
__________________________________ By:____________________________________
Assistant Secretary Title:_________________________________
Dated:____________________________
Countersigned:
__________________________________
as Warrant Agent,
By:_______________________________
Authorized Signature
Void after____________
A-2
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[FORM OF WARRANT CERTIFICATE]
[REVERSE]
CROWN AMERICAN REALTY TRUST
COMMON SHARE WARRANT
The Warrants evidenced by this Warrant Certificate are part
of a duly authorized issue of Warrants issued pursuant to a Warrant Agreement
dated as of____________ __, 1997 (the "Warrant Agreement") between the Company
and ________________, as Warrant Agent, to which Warrant Agreement reference is
hereby made for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants. Copies of the Warrant Agreement are on file
and available for inspection and can be obtained at the corporate trust office
of the Warrant Agent.
With certain exceptions as therein provided, the Warrant
Agreement provides that, with the consent of the holders of at least a majority
in number of the Warrants at the time outstanding, the Company and the Warrant
Agent may at any time and from time to time by supplemental agreement or
amendment add any provisions to or change in any manner or eliminate any of the
provisions of the Warrant Agreement or the Warrants or of any supplemental
agreement or modify in any manner the rights and obligations of the holders and
of the Company.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the Form of
Exercise hereon properly completed and executed, and upon payment of the
Exercise Price. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate or Certificates evidencing the number of
Warrants not exercised. No adjustment will be made for any dividends on any
shares issuable upon exercise of Warrants evidenced by this Warrant
Certificate. The Warrant Agent may charge, and, unless otherwise instructed by
the Company shall charge, the party exercising Warrants evidenced by this
Warrant Certificate a sum sufficient to reimburse it and the Company for any
tax or taxes or government charge required to be paid in connection with any
issuance of a certificate for shares purchased on exercise of any Warrants.
The Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price may, subject to certain conditions, be
adjusted and that, under certain circumstances, Warrants may become exercisable
for securities or other assets other than the shares referred to on the face
hereof. If the Exercise Price is adjusted, the Warrant Agreement provides that,
at the election of the Company, either (i) the number of shares purchasable
upon the exercise of each Warrant shall be adjusted or (ii) each outstanding
Warrant shall be adjusted
A-3
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to become a different number of Warrants. In the case of (ii), the Company will
cause to be distributed to holders of Warrant Certificates either Warrant
Certificates representing the additional Warrants issuable pursuant to the
adjustment, or substitute Warrant Certificates to replace all outstanding
Warrant Certificates. If substitute Warrant Certificates are to be issued, the
Company can require any recipient of such Warrant Certificate to surrender
existing Warrant Certificates. In lieu of fractional Warrants and fractional
shares the Company shall pay an amount in cash as provided in the Warrant
Agreement. In addition, the Company, in its discretion, may reduce the Exercise
Price or increase the number of shares purchasable upon exercise of Warrants, as
provided in the Warrant Agreement.
Subject to the limitations provided herein and in the Warrant
Agreement, this Warrant Certificate is transferable, in whole or in part (in
whole Warrants), on the Warrant Register, upon surrender of this Warrant
Certificate at an office or agency maintained by the Company for such purpose,
duly endorsed by, or otherwise accompanied by a written assignment in form
satisfactory to the Company and the Warrant Agent duly executed by, the holder
hereof or his duly authorized attorney, together with funds to pay any
transfer, documentary, stamp or other taxes or government charges payable in
connection with such transfer and any other amounts required pursuant to this
Warrant Certificate. Upon such surrender and payment, the Warrant Agent will
countersign and deliver a new Warrant Certificate, in the name of the assignee
and in a permissible denomination or denominations (in whole Warrants)
specified in such instrument of assignment. If less than all of this Warrant
Certificate is being transferred, the Warrant Agent will countersign and
deliver a new Warrant Certificate or Certificates for the portion of this
Warrant Certificate not being transferred.
This Warrant Certificate may be divided or combined with
other Warrant Certificates of other denominations upon surrender hereof at an
office or agency maintained by the Company for such purpose, together with a
written notice specifying the names and denominations (in whole Warrants) in
which new Warrant Certificates are to be issued, signed by the holder hereof or
his duly authorized attorney, together with the funds to pay any transfer,
documentary, stamp or other taxes or government charges payable in connection
with such transfer and any other amounts required pursuant to this Warrant
Certificate. Upon such surrender and payment, a new Warrant Certificate or
Certificates representing a like aggregate number of Warrants shall be issued
and delivered in accordance with such notice.
If this Warrant Certificate at any time becomes mutilated,
lost, stolen or destroyed, the Company will issue, and the Warrant Agent will
countersign, in exchange and substitution for and upon cancellation hereof, or
in lieu of and in substitution for this Warrant Certificate, a new Warrant
Certificate of like tenor and representing an equivalent number of Warrants,
but only upon receipt of evidence satisfactory to the Company and the Warrant
Agent of such loss, theft or destruction and indemnity satisfactory to each of
them. Applicants for such substitute Warrant Certificates must also comply
with such other regulations and pay such other charges as the Company or the
Warrant Agent may prescribe.
A-4
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The Company shall make no service or other charge in
connection with any transfer or exchange of this Warrant Certificate, except
for any transfer, documentary, stamp or other taxes or government charges
payable in connection therewith and any other amounts permitted by the Warrant
Agreement (including any charges for the issuance of Warrant Certificates in
exchange for or in lieu of this Warrant Certificate if the same should become
mutilated, destroyed, stolen or lost, as provided above).
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, any distribution to the holder
hereof and for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
This Warrant Certificate shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
Signatures on exercises and assignments of this Warrant must,
unless waived by the Company, be guaranteed.
[FORM OF EXERCISE]
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ______ Common Shares
of the Company (or such other securities or assets of the Company as are
purchasable in their place pursuant to this Warrant Certificate), and herewith
tenders payment for such shares (or other securities or assets) to the order of
Crown American Realty Trust (the "Company") in the amount of $__________ by
certified or cashier's check or in cash in accordance with the terms hereof. The
undersigned requests that a certificate for such shares (or other securities) be
registered in the name of
____________________ Name
____________________ Address
____________________ Social Security or
Taxpayer Identification Number
and, if less than all Warrants represented by this Warrant Certificate are
being exercised, that a new Warrant Certificate representing the remaining
balance of Warrants be registered in the name of
____________________ Name
____________________ Address
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____________________ Social Security or
Taxpayer Identification Number
and, if any cash payments are to be made in lieu of fractional shares, that
such payments be made to
____________________ Name
____________________ Address
____________________ Social Security or
Taxpayer Identification Number
IN THE ABSENCE OF ANY SPECIFICATION REQUIRED ABOVE, SHARES OR NEW WARRANT
CERTIFICATES WILL BE REGISTERED IN THE NAME OF, OR CASH PAYMENTS WILL BE MADE
TO, THE REGISTERED HOLDER AT THE ADDRESS SET FORTH ON THE WARRANT REGISTER
MAINTAINED BY THE WARRANT AGENT.
Date:_____________________________ Signature:_____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
Signature Guaranteed:
__________________________________
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________ Name
__________________________ Address
__________________________ Social Security or
Taxpayer Identification Number
_______________ Warrants represented by the within Warrant Certificate, and
does hereby irrevocably constitute and appoint
_______________ Attorney to transfer said Warrants on the books of the
within-named Company, with full power of substitution.
Date: _____________________________ Signature:_______________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant Certificate.)
Signature Guaranteed:
___________________________________
A-7