XXXX REAL ESTATE GROUP, INC.
FORM OF
COMMON STOCK PURCHASE WARRANT
_______________, 1997
TABLE OF CONTENTS
Page
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1. Definitions............................................................. 1.
2. Exercise of Warrant..................................................... 3.
2.1 Manner of Exercise...............................................3.
2.2 Payment of Taxes.................................................4.
2.3 Fractional Shares................................................4.
3. Transfer, Division and Combination.......................................4.
3.1 Transfer.........................................................4.
3.2 Division and Combination.........................................5.
3.3 Expenses.........................................................5.
3.4 Maintenance of Books.............................................5.
4. Adjustments..............................................................5.
4.1 Stock Dividends, Subdivisions, Combinations
and Reclassifications........................................... 5.
4.2 Other Provisions Applicable to Adjustments under this Section....6.
5. Notices to Warrant Holders; Notice of Adjustments........................6.
6. Reservation and Authorization of Common Stock............................6.
7. Taking of Record; Stock and Warrant Transfer Books.......................6.
8. Transferability and Registration.........................................7.
8.1 Notice of Proposed Transfers.....................................7.
8.2 Required Registration............................................7.
8.3 Registration Procedures..........................................8.
8.4 Expenses; Limitations on Registration............................9.
8.5 Indemnification..................................................9.
8.6 Listing on Securities Exchange..................................11.
8.7 Certain Limitations on Registration Rights......................11.
9. Loss or Mutilation......................................................11.
10. Office of The Company...................................................12.
11. Financial and Business Information......................................12.
12. Limitation of Liability.................................................12.
13. Miscellaneous...........................................................12.
13.1 Nonwaiver and Expenses.........................................12.
13.2 Notice Generally...............................................12.
13.3 Successors and Assigns.........................................13.
13.4 Amendment......................................................13.
13.5 Construction...................................................13.
13.6 Severability...................................................13.
13.7 Headings.......................................................14.
13.8 Governing Law; Service of Process..............................14.
13.9 Mutual Waiver of Jury Trial....................................14.
Exhibit A
Exhibit B
x.
XXXX REAL ESTATE GROUP, INC.
COMMON STOCK PURCHASE WARRANT
_______________, 1997
THIS IS TO CERTIFY THAT ___________________ or its registered assigns, is
entitled, at any one time on and after the First Available Exercise Date and on
or prior to the Expiration Date to purchase from XXXX REAL ESTATE GROUP, INC., a
Delaware corporation (the "Company"), for no additional consideration, that
number of shares of Common Stock of the Company (as hereinafter defined and
subject to adjustment as provided herein) determined by dividing
_________________ Dollars ($______) by the average of the per share trading
price of the Company's Common Stock for the first twenty (20) Trading Day period
commencing on the next Trading Day following the Closing Date, all on the terms
and conditions and pursuant to the provisions hereinafter set forth.
Capitalized terms used herein and not otherwise defined, shall have the meanings
set forth below.
1. DEFINITIONS.
"Additional Shares of Common Stock" shall mean all shares of Common Stock
issued by the Company following the date of this Warrant.
"Business Day" shall mean any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the States of
California or New York.
"Closing Date" shall mean the date on which the closing of the
Recapitalization occurs.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" shall mean (except where the context otherwise indicates)
the Common Stock par value $0.05 per share of the Company, and any capital stock
into which such Common Stock may thereafter be changed, and shall also include
capital stock of the Company of any other class (regardless of how denominated)
issued to the holders of shares of Common Stock upon any reclassification
thereof which is not preferred as to dividends or assets over any other class of
stock of the Company and which is not subject to redemption.
"Convertible Securities" shall mean evidences of indebtedness, options,
warrants or other rights to receive shares of stock or other securities which
are convertible into or exchangeable for Common Stock, with or without payment
of additional consideration in cash or property, either immediately or upon the
occurrence of a specified date or a specified event.
1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Exercise Period" shall mean the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" shall mean the date that is two (2) years following the
Registration Effective Date.
"First Available Exercise Date" shall mean the date which is twenty (20)
Trading Days following the Closing Date.
"Fully Diluted Outstanding" shall mean, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all shares of Common Stock Outstanding at such date and all shares of Common
Stock issuable in respect of this Warrant and all other Convertible Securities
or other rights to purchase or receive Common Stock outstanding on such date.
"Holder" shall mean the Person or Persons in whose name the Warrant set
forth herein is registered on the books of the Company maintained for such
purpose. In the event more than one Person is so registered, "Holder" for
purposes of consent, demand or other action allowed or required to be taken
hereunder by the Holder(s) of this Warrant, the word "Holder" shall refer to a
simple majority in interest of such Persons.
"NASD" shall mean the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"NASDAQ" shall mean the stock market operated by the NASD.
"Outstanding" shall mean, when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be determined, all issued
shares of Common Stock, except shares then owned or held exclusively by or for
the account solely of the Company or any wholly-owned Subsidiary thereof
(collectively, "Subsidiary-Held Shares"), and shall include all shares issuable
in respect of any certificates representing fractional interests in shares of
Common Stock. Subsidiary-Held Shares shall remain Subsidiary-Held Shares even
if held in pledge as security unless and until such shares are foreclosed upon
and record, beneficial or equitable ownership transferred.
"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, trust, incorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
2.
"Preferred Stock" shall mean any class of the Company's stock having
rights, preferences or privileges senior or prior in right to any other class.
"Recapitalization" means the Recapitalization of the Company as proposed
and described in that certain Registration Statement of the Company first filed
with the Commission on Form S-4 on February 20, 1997 Registration No. 333-22121.
"Registration Effective Date" shall mean the date a registration statement
first becomes effective with the Commission registering the sale and
distribution of the Warrants and Warrant Stock.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Subsidiary" shall mean, with respect to any Person, any corporation of
which an aggregate of more than 50% of the outstanding stock having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person and/or one or more Subsidiaries of such
Person.
"Subsidiary-Held Shares" shall have the meaning set forth above in the
definition of "Outstanding."
"Trading Day" shall mean any day on which NASDAQ is open for trading.
"Transfer" shall mean any disposition of any Warrant or Warrant Stock or of
any interest in either thereof, which would constitute a sale thereof within the
meaning of the Securities Act.
"Transfer Notice" shall have the meaning set forth in Section 8.1.
"Warrant" or Warrants" shall mean this Warrant and all warrants issued upon
Transfer, division or combination of, or in substitution for, this Warrant. All
Warrants shall at all times be identical as to terms and conditions and date,
except as to the percentage of Fully Diluted Outstanding Shares of Common Stock
for which they may be exercised. Collectively, all unexercised Warrants shall
be exercisable for the exact same number of shares as this Warrant would be
exercisable in the event any such Transfer or division had not occurred.
Exercise of any warrant(s) shall not trigger any of the adjustments contemplated
by Section 4 of this Warrant.
"Warrant Stock" shall mean the shares of Common Stock issuable to the
Holder of the Warrants upon the exercise thereof.
3.
2. EXERCISE OF WARRANT.
2.1 MANNER OF EXERCISE. From and after the First Available
Exercise Date and until 5:00 p.m., Eastern time, on the Expiration Date, the
Holder may exercise the Warrant on Business Days, for all or any part of shares
(subject to adjustment as provided herein) of Common Stock then purchasable
hereunder. In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office at 0000 Xxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, ATTENTION: Xxxxxxx X. Xxxxxx or at the office or agency
designated by the Company pursuant to Section 11, (i) a written notice of
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased and (ii) this Warrant. Such
notice shall be substantially in the form of the subscription form appearing at
the end of this Warrant as EXHIBIT A, duly executed by Xxxxxx or its agent or
attorney. Upon receipt thereof, the Company shall, as promptly as practicable,
and in any event within five (5) Business Days thereafter, execute or cause to
be executed and deliver or cause to be delivered to Holder a certificate or
certificates representing the aggregate number of full shares of Common Stock
issuable upon such exercise. The stock certificate or certificates so delivered
shall be, to the extent possible, in such denomination or denominations as such
Holder shall request in the notice and shall be registered in the name of Holder
or, subject to Section 8, such other name as shall be designated in the notice.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any other Person
so designated to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date the notice and this
Warrant are received by the Company as described above and all taxes required to
be paid by Holder, if any, pursuant to Section 2.2 prior to the issuance of such
shares have been paid or agreed to be paid when finally determined.
2.2 PAYMENT OF TAXES. All shares of Common Stock issuable upon the
exercise of this Warrant pursuant to the terms hereof shall be validly issued,
fully paid and nonassessable. The Company shall pay all expenses in connection
with, and all taxes and other governmental charges that may be imposed with
respect to, the issue or delivery thereof, unless such taxes or charges are
imposed by law upon Holder, in which case such taxes or charges shall be paid by
Xxxxxx. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any Transfer involved in the issuance of any
certificate for shares of Common Stock issuable upon exercise of this Warrant in
any name other than that of Holder, and in such case the Company shall not be
required to issue or deliver any stock certificate until any such tax or other
charge has been paid or it has been established to the satisfaction of the
Company that no such tax or other charge is due.
2.3 FRACTIONAL SHARES. The Company shall not issue a fractional
share of Common Stock upon exercise of this Warrant. A fractional share
otherwise issuable shall be rounded up or down to the nearest whole share.
3. TRANSFER, DIVISION AND COMBINATION.
3.1 TRANSFER. Transfer of this Warrant and all rights hereunder,
in whole or in part, shall be registered on the books of the Company to be
maintained for such purpose, upon
4.
surrender of this Warrant at the principal office of the Company referred to in
Section 2.1 or the office or agency designated by the Company pursuant to
Section 10, together with a written assignment of this Warrant substantially in
the form of EXHIBIT B hereto duly executed by Xxxxxx or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company
shall, subject to Section 8, execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denomination specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned in compliance with
Section 8, may be exercised by a new Holder for the purchase of shares of Common
Stock without having a new Warrant issued. If requested by the Company, a new
Holder shall acknowledge in writing, in form reasonably satisfactory to the
Company, such Xxxxxx's continuing obligations under this Warrant.
3.2 DIVISION AND COMBINATION. Subject to Section 8, this Warrant
may be divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Xxxxxx or its agent or attorney. Subject to compliance with Section
3.1 and with Section 8, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 EXPENSES. The Company shall prepare, issue and deliver at its
own expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.4 MAINTENANCE OF BOOKS. The Company shall maintain, at its
aforesaid office or agency, books for the registration, and the registration of
transfer, of this Warrant.
4. ADJUSTMENTS. The number of shares of Common Stock for which this
Warrant is exercisable shall be subject to adjustment from time to time as set
forth in this Section 4. The Company shall give each Holder notice of any event
described below which requires an adjustment pursuant to this Section 4 at the
time of such event.
4.1 STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS AND
RECLASSIFICATIONS. If at any time the Company shall with respect to its Common
Stock or Convertible Securities:
(a) pay a dividend or make distribution to holders of the
Company's securities generally of Additional Shares of Common Stock or
Convertible Securities, other than convertible indebtedness or convertible
Preferred Stock,
(b) subdivide its Outstanding shares of Common Stock into a
larger number of shares of Common Stock,
(c) combine its Outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or
5.
(d) reclassify its Common Stock (other than a change in par
value, or from par value to no par value) into shares of any other class of
stock; and, if the Outstanding shares of Common Stock shall be changed into a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as
the case may be, of the Outstanding shares of Common Stock within the meaning of
this Section 4.1., then the number of shares of Common Stock for which this
Warrant is exercisable after the occurrence of any such event shall be equal to
(A) the maximum number of shares of Common Stock underlying this Warrant prior
to the occurrence of any such event, multiplied by (B) the number of Fully
Diluted Outstanding shares of Common Stock after any such event, divided by the
number of Fully Diluted Outstanding shares of Common Stock prior to any such
event. Any increased number of shares of Common Stock subject to this Warrant
resulting from application of the foregoing shall be allocated ratably among all
shares of Common Stock subject to this Warrant prior to each such event.
4.2 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION.
The following provisions shall be applicable to the making of adjustments to the
number of shares of Common Stock for which this Warrant is exercisable:
(a) WHEN ADJUSTMENTS TO BE MADE. The adjustments required
by this Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur. For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of business on the
date of its occurrence.
(b) WHEN ADJUSTMENT NOT REQUIRED. If the Company shall
take a record of the holders of its Common Stock for the purpose of entitling
them to receive a dividend or distribution or subscription or purchase rights
and shall, thereafter and before the distribution to stockholders thereof,
legally abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be required
by reason of the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
5. NOTICES TO WARRANT HOLDERS; NOTICE OF ADJUSTMENTS. Whenever the number
of shares of Common Stock for which this Warrant is exercisable shall be
adjusted pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated, specifying the number of shares of
Common Stock for which this Warrant is exercisable, after giving effect to such
adjustment or change. The Company shall promptly cause a signed copy of such
certificate to be delivered to each Holder in accordance with Section 13.2. The
Company shall keep at its office or agency designated pursuant to Section 10
copies of all such certificates and cause the same to be available for
inspection at said office during normal business hours by any Holder or any
prospective purchaser of a Warrant designated by a Holder thereof.
6. RESERVATION AND AUTHORIZATION OF COMMON STOCK. From and after the
Closing Date, the Company shall at all times reserve and keep available for
issuance upon the exercise of Warrants such number of its authorized but
unissued shares of Common Stock as will be sufficient to permit the exercise in
full of all outstanding Warrants. All shares of Common Stock which shall be so
issuable, when issued upon exercise of any Warrants and payment therefor in
accordance with the terms of such Warrants, shall be duly and validly issued,
fully paid and nonassessable, and shall not be subject to preemptive rights.
7. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS. In the case of all
dividends or other distributions by the Company to the holders of its Common
Stock with respect to which any provision of Section 4 requires the taking of a
record of such holders, the Company will in each such case take such a record as
of the close of business on a Business Day. The Company will not at any time,
except upon dissolution, liquidation or winding up of the Company, close its
stock transfer books or Warrant transfer books so as to result in the prevention
of or delay in the exercise or transfer of any Warrant.
8. TRANSFERABILITY AND REGISTRATION. This Warrant and the Warrant Stock
shall not be transferred, hypothecated or assigned before satisfaction of the
conditions specified in this Section 8, which conditions are intended to ensure
compliance with the provisions of the Securities Act and state law, with respect
to the Transfer of this Warrant or any Warrant Stock. Holder, by
6.
acceptance of this Warrant, agrees to be bound by the provisions of this Section
8.
8.1 NOTICE OF PROPOSED TRANSFERS. Prior to any Transfer or
attempted Transfer of any Warrants or any shares of Warrant Stock, the holder of
such Warrants or Warrant Stock shall give prior written notice (a "Transfer
Notice") to the Company of such holder's intention to effect such Transfer,
describing the manner and circumstances of the proposed Transfer, and during any
period in which the Warrants or Warrant Stock are not covered by an effective
registration statement permitting their Transfer, shall obtain and deliver to
the Company an opinion in form and substance reasonably satisfactory to the
Company (addressed to the Company and upon which the Company may rely) from
counsel to such holder who shall be reasonably satisfactory to the Company, that
the proposed Transfer of such Warrants or such Warrant Stock may be effected
without registration under the Securities Act and any applicable state
securities law(s). During any period in which such Warrants or Warrant Stock
are not covered by an effective registration statement, after receipt of the
Transfer Notice and opinion, as applicable, the Company shall, within five (5)
Business Days thereof, notify the holder of such Warrants or Warrant Stock and
such holder shall thereupon be entitled to Transfer such Warrants or such
Warrant Stock, in accordance with the terms of the Transfer Notice. During any
period in which such Warrants or Warrant Stock are covered by an effective
registration statement, Holder may immediately Transfer such Warrants or Warrant
Stock subject to any state blue sky laws which may restrict such Transfer. Each
certificate, if any, evidencing Warrants or shares of Warrant Stock issued upon
a Transfer which occurs during any period in which such Warrants or Warrant
Stock are not covered by an effective registration statement shall bear
appropriate restrictive legends, unless in the opinion of such counsel such
legend is not required in order to ensure compliance with the Securities Act and
any applicable state securities law(s).
8.2 REQUIRED REGISTRATION. The Company shall, as expeditiously as
is possible, use its commercially reasonable efforts to effect and continue the
registration under the Securities
7.
Act of the Warrants and all shares of Warrant Stock for sale, all to the extent
required to permit the disposition of the Warrants and the Warrant Stock so
registered during the Exercise Period; provided, however, that the Company shall
not be required to effect more than one registration of the Warrants or any
Warrant Stock pursuant to this Section 8.2. If the Company furnishes to the
Holder a copy of a resolution of the Board of Directors of the Company certified
by the Secretary of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company and its
stockholders for such registration statement to remain effective as long as such
registration statement would otherwise be required to remain effective, the
Company shall have the right to suspend such effectiveness for a period of not
more than 120 days; provided that, if effectiveness of such registration
statement is suspended pursuant to this provision, the period of such suspension
shall be added to the end of the period that such registration statement would
otherwise be required to be effective hereunder and the Exercise Period shall be
extended so that the aggregate number of days that such registration statement
is required to remain effective hereunder and the aggregate number of days that
the Warrants remain exercisable with such an effective registration statement in
place shall remain unchanged. Xxxxxx agrees that during any period in which the
effectiveness of a registration statement is suspended, Holder will discontinue
disposition of Warrants or Warrant Stock pursuant to such registration statement
and will comply with the terms of Section 8.1 applicable to Transfers occurring
when there is no effective registration statement in place with respect to any
Transfer of Warrants or Warrant Stock.
8.3 REGISTRATION PROCEDURES. In connection with the Company's
above described obligation to use its commercially reasonable efforts to effect
the registration of the Warrants and Warrant Stock under the Securities Act, the
Company will, subject to the provisions of Section 8.2 above, as expeditiously
as possible use its commercially reasonable efforts to:
(a) prepare and file with the Commission a registration
statement with respect to such securities and to cause such registration
statement to become and remain effective during the Exercise Period;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by such registration
statement during the Exercise Period;
(c) furnish to any selling security holders such number of
copies of a summary prospectus or other prospectus, in conformity with the
requirements of the Securities Act, and such other documents, as such selling
security holders may reasonably request;
(d) register or qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions within the United States and Puerto Rico as each Holder of such
securities shall reasonably request in light of such Holder's intended plan of
distribution (provided, however, that the Company shall have no such obligation
in the event the Company's shares are traded on a national securities exchange
or national market
8.
system, and provided further that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any jurisdiction in
which it is not then qualified or to file any general consent to service of
process or subject itself to taxation in any such jurisdiction), and do such
other reasonable acts and things as may be required of it to enable such holder
to consummate the disposition in such jurisdiction of the securities covered by
such registration statement;
(e) otherwise comply with all applicable rules and
regulations of the Commission applicable to the registration of the Warrants and
the Warrant Stock; and
(f) notify each selling Holder of such registrable
securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the securities covered by the
registration statement, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and promptly make
available to each selling Holder any such supplement or amendment.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Section 8 in respect of the securities which
are to be registered that the Holder of Warrants or Warrant Stock shall furnish
to the Company such information regarding the securities held by such holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
Each selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 8.3(f)
hereof, such selling Holder will forthwith discontinue disposition of Warrants
and Warrant Stock pursuant to the registration statement covering such
securities and will comply with the terms of Section 8.1 applicable to Transfers
occurring when there is no effective registration statement in place with
respect to any Transfer of Warrants or Warrant Stock until such selling Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 8.3(f) hereof, and, if so directed by the Company such selling Holder
will deliver to the Company all copies, other than permanent file copies then in
such selling Holder's possession, of the most recent prospectus covering the
securities covered by registration statement at the time of receipt of such
notice. If the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
and the Exercise Period by the number of days during the period from and
including the date of the giving of notice pursuant to Section 8.3(f) hereof to
the date when the Company shall make available to the selling Holders of the
securities covered by such registration statement a prospectus supplemented or
amended to conform with the requirements of Section 8.3(f) hereof.
8.4 EXPENSES; LIMITATIONS ON REGISTRATION. All expenses incurred
in complying with the Company's registration requirements described in this
Section 8, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD,
9.
printing expenses, fees and disbursements of counsel for the Company, expenses
of any special audits incident to or required by any such registration and
expenses of complying with the securities or blue sky laws of any jurisdictions
pursuant to Section 8.3(d), shall be paid by the Company, except that the
Company shall not be liable for any fees, discounts or commissions to any
underwriter, broker or counsel in respect of the securities sold by such holder
of Warrants or Warrant Stock.
8.5 INDEMNIFICATION.
(a) Upon registration of any of the Warrant Stock under the
Securities Act pursuant to this Section 8, the Company shall indemnify and hold
harmless the holder of such Warrant Stock, such holder's directors and officers,
and each other Person who participated in the offering of such Warrant Stock and
each other Person, if any, who controls such holder or such participating Person
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such holder or any such director or
officer or participating Person or controlling Person may become subject under
the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or (ii) any alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse such Holder or such director, officer or participating
Person or controlling Person for any legal or any other expenses reasonably
incurred by such holder or such director, officer or participating Person or
controlling Person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any alleged untrue statement or
alleged omission made in such registration statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
information furnished to the Company by such holder specifically for use
therein. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or such director, officer or
participating Person or controlling Person, and shall survive the transfer of
such securities by such holder.
(b) Each holder of any Warrant Stock, by acceptance
thereof, agrees to indemnify and hold harmless the Company, its directors and
officers and each other Person, if any, who controls the Company within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or any such Person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
information provided to the Company by such Holder of such Warrant Stock
contained, on the effective date thereof, in any registration statement under
which securities were registered under the Securities Act at the request of such
holder, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto; provided, however, that such Holder's
obligation under this Section 8.5(b) to indemnify
10.
and hold harmless the Company shall in no event exceed the damage attributable
solely to the inclusion of such written information in such registration
statement, preliminary prospectus, final prospectus, or amendment or supplement
suffered by the Person or Persons whose claims gave rise to such losses, claims,
damages or liabilities.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information furnished in writing by persons specifically
for inclusion in any prospectus or registration statement.
(c) If the indemnification provided for in this Section 8.5 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action. The
amount paid or payable by a party under this Section 8.5 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 connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8.5(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding any other provisions of this Warrant, the
Company shall not be liable in any case to the extent that any loss, claim,
damage, liability or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission in any registration
statement or prospectus, if such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
registration statement and the Holder thereafter fails to deliver such
registration statement or prospectus as so amended or supplemented prior to or
concurrently with the sale of the securities covered by such registration
statement to the person asserting such loss, claim, damage, liability or expense
after the Company had furnished such Holder with a sufficient number of copies
of the same.
11.
8.6 LISTING ON SECURITIES EXCHANGE. If and so long as the Company
shall list any shares of Common Stock on NASDAQ or any securities exchange, it
will, at its expense, list thereon, maintain and, when necessary, increase such
listing of, all shares of Common Stock issued or, to the extent permissible
under the applicable NASDAQ or securities exchange rules, issuable upon the
exercise of this Warrant concurrently with registration of such shares under the
Securities Act for so long as any shares of Common Stock shall be so listed
during any such Exercise Period.
8.7 CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding
the other provisions of Section 8, the Company shall not be obligated to
continue to maintain an effective registration statement registering the
Warrants or Warrant Stock of any Holder if (x) in the opinion of counsel to the
Company, the sale or other disposition of such Holder's Warrants or Warrant
Stock, in the manner proposed by such Holder may be effected without
registration of such Warrants or Warrant Stock under the Securities Act.
9. LOSS OR MUTILATION. Upon receipt by the Company from any Holder of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it, and in case of mutilation upon surrender and cancellation thereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
such Holder; provided, in the case of mutilation, no indemnity shall be required
if this Warrant in identifiable form is surrendered to the Company for
cancellation.
10. OFFICE OF THE COMPANY. As long as any of the Warrants remain
outstanding, the Company shall maintain an office or agency (which may be the
principal executive office of the Company) where the Warrants may be presented
for exercise, registration of transfer, division or combination as provided in
this Warrant. The Company shall notify Holder in writing prior to any change of
the address of the office at which the Warrants may be presented.
11. FINANCIAL AND BUSINESS INFORMATION. The Company will file on or
before the required date all required regular or periodic reports (pursuant to
the Exchange Act) with the Commission and will deliver to Holder upon written
request by Holder promptly upon their becoming available one copy of each
report, notice or proxy statement sent by the Company to its stockholders
generally, and of each regular or periodic report (pursuant to the Exchange Act)
and any registration statement, prospectus or written communication (other than
transmittal letters) pursuant to the Securities Act, filed by the Company with
(i) the Commission or (ii) any securities exchange on which shares of Common
Stock are listed (provided, however, that the Company may request filing
extensions pursuant to Rule 12b-25 under the Securities and Exchange Act of
1934, as amended).
12. LIMITATION OF LIABILITY. No provision hereof, in the absence of
affirmative action by the Holder to exercise the Warrant and acquire shares of
Common Stock, and no enumeration herein of the rights or privileges of Holder
hereof, shall give rise to any liability of such Holder as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
12.
13. MISCELLANEOUS.
13.1 NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of the Company shall operate
as a waiver of such right or otherwise prejudice the Company's rights, powers or
remedies. No course of dealing or any delay or failure to exercise any right
hereunder on the part of the Holder shall operate as a waiver of such right or
otherwise prejudice the Holder's rights, powers or remedies. If the Company
fails to make, when due, any payments provided for hereunder, or fails to comply
with any other provision of this Warrant, the Company shall pay to the Holder
such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by the Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
13.2 NOTICE GENERALLY. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Warrant shall be sufficiently given or made
if in writing and either delivered (i) in person with receipt acknowledged,
(ii) by facsimile transmission, with receipt electronically confirmed during
normal business hours of recipient, and that is confirmed by sending, no later
than one (1) Business Day following such transmission, a copy of such facsimile,
by registered or certified mail, return receipt requested, postage prepaid, or
(iii) by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its
last known address or facsimile transmission number appearing on the books of
the Company maintained for such purpose.
(b) IF TO THE COMPANY TO:
Xxxx Real Estate Group, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged or sent by facsimile with receipt
electronically confirmed during normal business hours of recipient, or three (3)
Business Days after the same shall have been deposited in the United States
mail. Failure or delay in delivering copies of any notice, demand, request,
approval, declaration, delivery or other communication to the person designated
above to receive a copy shall in no way adversely affect the effectiveness of
such notice, demand, request, approval, declaration, delivery or other
communication.
13.
13.3 SUCCESSORS AND ASSIGNS. Subject to the provisions of Sections
3.1 and 8, this Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and assigns of Xxxxxx. The provisions of this Warrant are intended to be for
the benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
13.4 AMENDMENT. This Warrant and all other Warrants may be
modified or amended or the provisions hereof waived with the written consent of
the Company and the Holder.
13.5 CONSTRUCTION. The parties hereby acknowledge that they
participated jointly in the preparation of this Warrant. Each party to this
Warrant has had the opportunity to review, comment upon and redraft this
Warrant. It is agreed that no rule of construction shall apply against any
party or in favor of any party. This Agreement shall be construed as if the
parties jointly prepared this Agreement and any uncertainty and ambiguity shall
not be interpreted against any one party. This Agreement is to be enforced and
governed by and under the laws of the State of Delaware.
13.6 SEVERABILITY. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
13.7 HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
13.8 GOVERNING LAW; SERVICE OF PROCESS. In all respects, including
all matters of construction, validity and performance, this Agreement and the
obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the state of Delaware applicable to contracts
made and performed in such state, without regard to the principles thereof
regarding conflict of laws, and any applicable laws of the United States of
America.
13.9 MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE COMPANY AND HOLDER HEREOF
WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES),
THE COMPANY AND HOLDER HEREOF DESIRE THAT THEIR DISPUTES PERTAINING TO THE
WARRANT BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE COMPANY AND HOLDER HEREOF WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION SEEKING ENFORCEMENT OF THE PARTIES' RIGHTS UNDER THIS WARRANT.
14.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
as of the date first above written.
XXXX REAL ESTATE GROUP, INC.
By:
------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
15.
EXHIBIT A
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned registered owner of the attached Warrant irrevocably
exercises such Warrant for the purchase of_______Shares of Common Stock of
Xxxx Real Estate Group, Inc., all on the terms and conditions specified in such
Warrant and requests that certificates for the shares of Common Stock hereby
purchased (and any securities or other property issuable upon such exercise) be
issued in the name of and delivered to________________________ whose address is
___________________________________________ and, if such shares of Common Stock
shall not include all of the shares of Common Stock issuable as provided in such
Warrant, that a new Warrant of like tenor and date for the balance of the shares
of Common Stock issuable hereunder be delivered to the undersigned.
----------------------------------
(Name of Registered Owner)
----------------------------------
(Signature of Registered Owner)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of the
attached Warrant hereby sells, assigns and transfers unto the Assignee named
below all of the rights of the undersigned under such Warrant, with respect to
the number of shares of Common Stock set forth below:
NAME AND ADDRESS OF ASSIGNEE NO. OF SHARES OF
COMMON STOCK
and does hereby irrevocably constitute and appoint____________________________
attorney-in-fact to register such transfer on the books of Xxxx Real Estate
Group, Inc. maintained for the purpose, with full power of substitution in the
premises.
Dated: Print Name:
-------------- ------------------------
Signature:
--------------------
Witness:
-----------------
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the attached Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
