Exhibit 2
EXECUTION COPY
WARRANT AGREEMENT
THIS AGREEMENT is made and entered into as of April 25, 2002
by and between TRIZEC PROPERTIES, INC., a Delaware corporation (the "Company"),
Emerald Blue Kft (the "Initial Registered Holder") and each person or entity who
is a Registered Holder (as defined below) of Warrants as of any particular date.
WHEREAS, the Company desires to issue warrants (the
"Warrants") to purchase shares of Common Stock (the "Warrant Shares");
WHEREAS, the Company desires to set forth the terms and
conditions relating to the issuance, registration, transfer, exchange and
redemption of the Warrants, the issuance of certificates representing the
Warrants (the "Warrant Certificates"), the exercise of the Warrants and the
rights of the holders thereof;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth and for the purpose of defining the
terms and provisions of the Warrants and the Warrant Certificates and the
respective rights and obligations thereunder of the Company and the Registered
Holders, the parties hereto agree as follows:
Section 1. Definitions.
As used herein, the following terms shall have the following
meanings, unless the context shall otherwise require:
"Certificate of Incorporation" shall mean the certificate of
incorporation of the Company, as amended, restated or otherwise modified from
time to time.
"Common Stock" shall mean the common stock of the Company,
which at the date hereof consists of 500,000,000 authorized shares, $0.01 par
value per share, and any securities into or for which such common stock has been
converted or exchanged.
"Company" shall have the meaning assigned to such term in the
preamble hereof.
"Corporate Office" shall mean the office of the Company at
which at any particular time its principal business shall be administered, which
office is located at the date hereof at 1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Deferral Notice" shall have the meaning assigned to such term
in Section 9(d) hereof.
"Deferral Period" shall have the meaning assigned to such term
in Section 9(d) hereof.
"Effectiveness Period" shall mean the period beginning on the
date the Initial Shelf Registration Statement is declared effective and ending
on the latest Warrant Expiration Date or such earlier date upon which all
Warrant Shares have been issued and delivered upon the full exercise of all
Warrants.
"Exercise Date" shall mean, as to any Warrant, the date on
which the Registered Holder thereof shall have both (a) presented and
surrendered the Warrant Certificate representing such Warrant, with the exercise
form on the reverse thereof duly executed by the Registered Holder thereof or
his attorney-in-fact duly authorized in writing, at the Corporate Office of the
Company, and (b) made payment in cash, or by check or immediately available
funds payable to the Company, of an amount in lawful money of the United States
of America equal to the applicable Exercise Price; provided that such payment
may at the option of such Registered Holder be alternatively made through a
"cashless" exercise procedure as described in Section 4 hereof, in which case
the Exercise Date shall be the date on which such Registered Holder shall have
both satisfied the requirements of clause (a) above and provided notice to the
Company, in form acceptable to the Company in its sole discretion, of such
Registered Holder's election to exercise such Warrant pursuant to a "cashless"
exercise procedure.
"Exercise Price" with respect to each Warrant shall mean the
Exercise Price per Warrant Share to be paid upon exercise of such Warrant in
accordance with the terms hereof, which price shall initially equal the Exercise
Price set forth in the Warrant Certificate representing such Warrant, subject to
adjustment from time to time pursuant to the terms and provisions of Section 8
hereof.
"Initial Exercise Date" shall mean the effective date of the
plan of arrangement contemplated in the Plan Circular.
"Initial Registered Holder" shall have the meaning assigned to
such term in the preamble hereof.
"Initial Shelf Registration Statement" shall have the meaning
assigned to such term in Section 9(a) hereof.
"Material Event" shall have the meaning assigned to such term
in Section 9(d) hereof.
"Plan Circular" shall mean the Trizec ▇▇▇▇ Corporation
management information circular dated March 13, 2002 relating to, inter alia,
the plan of arrangement to be approved by Trizec ▇▇▇▇ Corporation's shareholders
and the Superior Court of Justice (Ontario) relating to the corporate
reorganization of Trizec ▇▇▇▇ Corporation.
"Principal Market" shall mean (a) if the Common Stock is
listed or admitted to trading on the New York Stock Exchange, the New York Stock
Exchange, (b) if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, but is listed or admitted to trading on The Nasdaq
Stock Market, The Nasdaq Stock Market; or (c) if the Common Stock is not listed
or admitted to trading on either of the New York Stock Exchange or The Nasdaq
Stock Market, then such other securities exchange or over-the-counter market in
the
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United States, or national quotations system in the United States, on or over
which the Common Stock trades, as the Company's board of directors may
determine.
"Prospectus" shall mean the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective Shelf Registration Statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such prospectus.
"Registered Holder" shall mean as to any Warrant and as of any
particular date, the person in whose name the Warrant Certificate representing
such Warrant shall be registered on that date on the books maintained by the
Company pursuant to Section 6 hereof.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" shall have the meaning assigned
to such term in Section 9(a) hereof.
"Subsequent Shelf Registration Statement" shall have the
meaning assigned to such term in Section 9(b) hereof.
"Trading Day" shall mean (a) if the Common Stock is listed or
admitted to trading on a Principal Market, any day on which such Principal
Market is open for the transaction of business; provided that the term "Trading
Day" shall not include a day on which trading in the Common Stock on the
Principal Market has been suspended; or (b) if the Common Stock is not listed or
admitted to trading on a Principal Market, any day other than (i) a Saturday or
Sunday or (ii) a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Transfer Agent" shall mean the Company or, if applicable, a
third party stock transfer agent and registrar retained by the Company.
"Warrant Certificate" shall have the meaning assigned to such
term in the preamble hereof.
"Warrant Expiration Date" with respect to each Warrant shall
mean the Warrant Expiration Date as defined in the Warrant Certificate
representing such Warrant.
"Warrants" shall have the meaning assigned to such term in the
preamble hereof.
"Warrant Shares" shall have the meaning assigned to such term
in the preamble hereof.
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Section 2. Warrants and Issuance of Warrant Certificates.
(a) A Warrant initially shall entitle the Registered Holder
thereof to purchase one Warrant Share in accordance with the terms hereof,
subject to modification and adjustment as provided in Section 8 hereof.
(b) Warrant Certificates in the form of Exhibit A annexed
hereto representing Warrants initially issued in such amounts and with such
terms as set forth in Schedule A hereto shall be delivered to the Initial
Registered Holder on or before the Initial Exercise Date.
(c) Upon the exercise of Warrants pursuant to Section 4 hereof
the Transfer Agent shall countersign and deliver stock certificates in required
whole number denominations representing the Warrant Shares issuable, subject to
adjustment as described herein.
(d) From time to time the Company shall sign and deliver
Warrant Certificates in required whole number denominations to the persons
entitled thereto in connection with any transfer or exchange permitted under
this Agreement; provided that no Warrant Certificates shall be issued under this
Agreement except (i) those initially issued hereunder, (ii) those issued on or
after the Initial Exercise Date, upon the exercise of fewer than all Warrants
represented by any Warrant Certificate, to evidence any unexercised Warrants
held by the exercising Registered Holder, (iii) those issued upon any transfer
or exchange pursuant to Section 6 hereof; (iv) those issued in replacement of
lost, stolen, destroyed or mutilated Warrant Certificates pursuant to Section 7
hereof; and (v) those issued by the Company, in such form as may be approved by
its Board of Directors, to reflect any adjustment or change in the Exercise
Price or the number of Warrant Shares purchasable upon exercise of the Warrants
pursuant to Section 8 hereof.
Section 3. Form and Execution of Warrant Certificates. (a) The
Warrant Certificates shall be substantially in the form attached hereto as
Exhibit A (the provisions of which are hereby incorporated herein) and may have
such letters, numbers or other marks of identification or designation and such
legends, summaries or endorsements printed, lithographed or engraved 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 law or with any rule
or regulation made pursuant thereto. The Warrant Certificates shall be dated the
date of issuance thereof (whether upon initial issuance, transfer, exchange or
in lieu of mutilated, lost, stolen or destroyed Warrant Certificates) and issued
in registered form.
(b) Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, any Vice President, Corporate
Secretary or Treasurer, by manual signatures or by facsimile signatures printed
thereon. In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be an officer of the Company or to hold the
particular office referenced in the Warrant Certificate before the date of
issuance of the Warrant Certificates, such Warrant Certificates may nevertheless
be issued and delivered with the same force and effect as though the person who
signed such Warrant Certificates had not ceased to be an officer of the Company
or to hold such office.
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Section 4. Exercise. Each Warrant may be exercised by the
Registered Holder thereof at any time on or after the Initial Exercise Date, but
not after the applicable Warrant Expiration Date, upon (a) the presentation and
surrender of the Warrant Certificate representing such Warrant, with the
exercise form on the reverse thereof duly executed by the Registered Holder
thereof or his attorney-in-fact duly authorized in writing, at the Corporate
Office of the Company, and (b) payment in cash, or by check or immediately
available funds payable to the Company, of an amount in lawful money of the
United States of America equal to the applicable Exercise Price (provided that
such payment may at the option of the Registered Holder be alternatively made
through a "cashless" exercise procedure, in accordance with such requirements
and procedures as are acceptable to the Company in its sole discretion, whereby
a specified number of the Warrant Shares issued upon exercise of any Warrant
shall be delivered directly to a broker or dealer designated by the Company for
sale, the number of which is to sufficient to generate cash to pay the
applicable Exercise Price and to satisfy any related withholding tax
obligations), subject to the terms and conditions set forth herein and in the
applicable Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date, and the person
entitled to receive the Warrant Shares deliverable upon such exercise shall be
treated for all purposes as the holder thereof as of the close of business on
the Exercise Date. The Company shall cause to be issued and delivered to the
person or persons entitled to receive the same, a certificate or certificates
for the Warrant Shares deliverable upon such exercise (plus a certificate for
any remaining unexercised Warrants of the Registered Holder) promptly following,
and in any event within three (3) Trading Days after, the Exercise Date or such
earlier time as may be required to permit the sale of such Warrant Shares on the
Principal Market on the Trading Day following the Exercise Date and the
settlement of such sale within the time period then prescribed by such Principal
Market.
Section 5. Reservation of Shares, Listing, Payment of Taxes,
etc. (a) The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon exercise of Warrants, such number of shares of Common Stock as shall then
be issuable upon the exercise of all outstanding Warrants. The Company covenants
that all Warrant Shares issuable upon exercise of Warrants shall, at the time of
delivery, be duly and validly issued, fully paid, non-assessable and free from
all taxes, liens and charges with respect to the issue thereof and that upon
issuance such Warrant Shares shall be listed on the Principal Market.
(b) The Company shall pay all documentary, stamp or similar
taxes and other governmental charges, but not including any income tax or
withholding tax, that may be imposed with respect to the initial issuance of
Warrants or the issuance or delivery of the Warrant Shares; provided, however,
that if the Warrant Shares are to be delivered in a name other than the name of
the Registered Holder of the Warrant Certificate representing any Warrant being
exercised, then no such delivery shall be made unless the person requesting the
same has paid to the Company the amount of taxes, including transfer taxes, that
may be imposed by any relevant governmental authority or charges incident
thereto, if any.
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Section 6. Exchange and Registration of Transfer. Subject to
any restrictions on transfer contained in the Warrant Certificates:
(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants of the
same class and may be transferred in whole or in part. Warrant
Certificates to be exchanged shall be surrendered to the Company at its
Corporate Office, and upon satisfaction of the terms and provisions
hereof, the Company shall execute, issue and deliver in exchange
therefor the Warrant Certificate or Warrant Certificates that the
Registered Holder making the exchange shall be entitled to receive. The
Registered Holder shall pay all taxes, including transfer taxes, if
any, that may be imposed by a relevant governmental authority, for any
transfer of Warrant Certificates.
(b) The Company shall keep at its office registry books in
which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and the transfer thereof in
accordance with its regular practice. The Warrants shall be
transferable only on such registry books of the Company. Upon due
presentment for registration of transfer of any Warrant Certificate at
such office, the Company shall execute, issue and deliver to the
transferee or transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
(c) With respect to all Warrant Certificates presented for
registration, transfer, exchange or exercise, the assignment or
subscription form thereof shall be duly endorsed, or be accompanied by
a written instrument or instruments of transfer and subscription, in
form satisfactory to the Company, duly executed by the Registered
Holder or his attorney-in-fact duly authorized in writing.
(d) All Warrant Certificates surrendered for exercise or for
exchange in case of mutilated Warrant Certificates shall be promptly
canceled by the Company and thereafter retained by the Company until
termination of this Agreement.
(e) Prior to due presentment for registration of transfer
thereof, the Company may deem and treat the Registered Holder of any
Warrant Certificate as the absolute owner thereof and of the Warrants
represented thereby (notwithstanding any notations of ownership or
writing thereon made by anyone other than a duly authorized officer of
the Company) for all purposes, except as provided in Section 7 hereof,
and shall not be affected by any notice to the contrary.
Section 7. Loss or Mutilation. Upon receipt by the Company of
evidence satisfactory to it of the ownership of and loss, theft, destruction or
mutilation of any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to it, and (in the case of mutilation)
upon surrender and cancellation thereof, the Company shall execute (in the
absence of notice to the Company that the Warrant Certificate has been acquired
by a bona fide purchaser) and deliver to the Registered Holder in lieu thereof a
new Warrant Certificate of like tenor representing an equal aggregate number of
Warrants. Applicants for a substitute Warrant Certificate shall comply with such
other reasonable regulations and pay such other reasonable charges as the
Company may prescribe.
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Section 8. Adjustments. In the event of any change in the
outstanding Common Stock by reason of a dividend or stock split,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares or otherwise or any other event that may dilute or enlarge the rights
of the Registered Holders with respect to (i) the number of Warrant Shares
issuable upon exercise of each outstanding Warrant or (ii) the Exercise Prices
in respect thereof, then (a) such proportionate adjustments or substitutions
shall be made as may be necessary (in the form determined by the Company's board
of directors in consultation with legal counsel) to prevent dilution or
enlargement of the rights of the Registered Holders with respect to any of the
matters described in clause (i) and (ii) above, and (b) the Company's board of
directors may make such other adjustments or substitutions, consistent with the
foregoing, as it deems appropriate in consultation with legal counsel. The
determination of the Company's board of directors, as to any substitution or
adjustment or as to there being no need for the same, will be final and binding
on all parties.
To the extent practicable, the Company shall provide prompt
notice to all Registered Holders of any event that may make an adjustment or
substitution necessary or appropriate pursuant to this Section 8, unless such
event occurs during a Deferral Period, in which case the Company shall provide
prompt notice of such event to all Registered Holders after the termination of
the Deferral Period.
Section 9. Registration of Common Stock. (a) The Company shall
have prepared and filed or caused to be prepared and filed with the SEC a
registration statement of the Company for a primary offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act
registering the issuance of the Warrant Shares by the Company upon the exercise
of Warrants (a "Shelf Registration Statement"), which Shelf Registration
Statement shall have been declared effective under the Securities Act on or
prior to the Initial Exercise Date (the "Initial Shelf Registration Statement").
The Initial Shelf Registration Statement shall be on Form S-11 or another
appropriate form permitting registration of the Warrant Shares for sale to the
Registered Holders in accordance with the methods of distribution reasonably
elected by the Company and set forth in the Initial Shelf Registration
Statement. The Company shall keep the Initial Shelf Registration Statement, or
any Subsequent Shelf Registration Statement, continuously effective under the
Securities Act until the expiration of the Effectiveness Period.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all securities
registered thereunder have been sold pursuant thereto), the Company shall use
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected by the Company to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement covering all of the securities that as of the date of such filing are
to be issued as Warrant Shares upon the exercise of the Warrants (a "Subsequent
Shelf Registration Statement"). If a Subsequent Shelf Registration Statement is
filed, the Company shall use reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is reasonably
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness Period.
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(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act.
(d) In connection with the registration obligations of the
Company under this Section 9, the Company shall:
(i) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may
be necessary to keep such Shelf Registration Statement continuously
effective until the end of the Effectiveness Period; cause the related
Prospectus to be supplemented by any required supplement thereto, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and use reasonable
efforts to comply with the provisions of the Securities Act applicable
to it with respect to the issuance of all securities covered by such
Shelf Registration Statement during the Effectiveness Period.
(ii) Use reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Shelf Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Warrant Shares for sale in any
jurisdiction in which they have been qualified for sale, in either case
as promptly as is reasonably practicable.
(iii) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of a Shelf Registration Statement or the
initiation of proceedings with respect to a Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "Material
Event") as a result of which a Shelf Registration Statement shall
contain any 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, or any Prospectus shall contain any
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, in the light of the circumstances under which they were made,
not misleading (including, in any such case, as a result of the
non-availability of financial statements), or (C) the occurrence or
existence of any corporate development that, in the discretion of the
Company acting reasonably, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, (1) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file a post-effective
amendment to such Shelf Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by
reference into such Shelf Registration Statement and Prospectus so that
such Shelf Registration Statement does not contain any 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 such Prospectus does not contain any 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, in the
light of the circumstances under which they were made, not misleading
and, in the case of a post-effective amendment to a Shelf Registration
Statement, subject to the next sentence, use reasonable efforts to
cause it to be declared
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effective as promptly as is reasonably practicable, and (2) give notice
to the Registered Holders that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice") and, upon
receipt of any Deferral Notice, each Registered Holder agrees not to
exercise its Warrants until it is advised in writing by Company that
the Deferral Period (as defined below) has terminated. The Company will
use reasonable efforts to ensure that its use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as
practicable, (y) in the case of clause (B) above, as soon as, in the
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to the Company or, if necessary to avoid
unreasonable burden or expense, as soon as reasonably practicable
thereafter, and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company acting reasonably, such suspension is no
longer necessary. The period during which the availability of the Shelf
Registration Statement and any Prospectus is suspended (the "Deferral
Period") shall not exceed forty-five (45) days in any three (3) month
period or one hundred and twenty (120) days in any twelve (12) month
period.
(iv) Concurrently with the effectiveness of any Shelf
Registration Statement filed by the Company with respect to the Warrant
Shares, the Company shall have obtained or obtain the approval for
listing or trading of such securities on the Principal Market.
Section 10. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under Section 9 hereof. Such fees and expenses shall include,
without limitation, (i) all registration and filing fees, (ii) printing expenses
including, without limitation, expenses of printing certificates for Warrant
Shares, (iii) duplication expenses relating to copies of any Shelf Registration
Statement or Prospectus delivered to any Registered Holders hereunder, (iv) fees
and disbursements of counsel for the Company in connection with the Shelf
Registration Statement, and (v) reasonable fees and disbursements of the
registrar and transfer agent for the Common Stock. In addition, the Company
shall pay the internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Warrant Shares on the Principal
Market and the fees and expenses of any person, including special experts,
retained by the Company.
Section 11. Fractional Shares. No fractional shares of Warrant
Shares will be issued in connection with any exercise hereunder, but in lieu of
such fractional Warrant Shares the Company shall make a cash payment therefor
upon the basis of the then current market price of such Warrant Shares as
determined in good faith by the Company's board of directors.
Section 12. Registered Holders Not Deemed Stockholders. No
Registered Holder shall, as such, be entitled to vote or to receive dividends or
be deemed the holder of Common Stock that may at any time be issuable upon
exercise of such Warrants for any purpose whatsoever, nor shall anything
contained herein be construed to confer upon any Registered Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue or
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reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger or conveyance or otherwise), or to receive notice
of meetings, or to receive dividends or subscription rights, until such
Registered Holder shall have exercised its Warrants and been issued Warrant
Shares in accordance with the provisions hereof.
Section 13. Agreement of Registered Holders. Every Registered
Holder, by the acceptance of a Warrant, consents and agrees with the Company,
and every other Registered Holder that:
(a) every Registered Holder shall be a party to this Warrant
Agreement and shall be bound by all of the terms and conditions hereof and of
the Warrant Certificates; and
(b) every Registered Holder who is a U.S. taxpayer and who
receives Warrants in a taxable transaction upon which compensation income is
realized for U.S. federal income tax purposes shall include such compensation
income on such Registered Holder's U.S. federal income tax return and on any
applicable State or local returns for the taxable period including such receipt
in an amount equal to the value of such Warrants as reported to such Registered
Holder by the Company.
Section 14. Cancellation of Warrant Certificates. If the
Company shall purchase or acquire any Warrant or Warrants, a Warrant Certificate
or Warrant Certificates evidencing the same shall thereupon be delivered to the
Company and canceled by it and retired. The Company shall also cancel any
Warrant Certificate following the exercise of any of the Warrants, or any
Warrant Certificate delivered to it for transfer, split up, combination or
exchange.
Section 15. Modification of Agreement. This Agreement shall
not be modified, supplemented or altered in any respect except with the consent
in writing of the Company and the Registered Holders; provided, however, that
the Company shall be permitted without the consent of the Registered Holders to
modify, supplement or alter this Agreement:
(a) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Agreement, provided that such action shall not materially adversely affect
the interests of Registered Holders;
(b) to comply with the Securities Act or any amendments
thereto, to comply with any requirement of the SEC, or as necessary in
connection with the registration of the Warrant Shares under the Securities Act;
or
(c) for any other purpose, which change does not adversely
affect the interests of Registered Holders.
Section 16. Notices. All notices, requests, consents and other
communications hereunder shall be made in writing by hand-delivery, first-class
mail, any courier guaranteeing overnight delivery, or facsimile transmission,
addressed as follows: if to a Registered Holder at his or her address as shown
on the registry books maintained by the Company, or if to the Company, to Trizec
Properties, Inc., 1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇, or such
other address of which Trizec Properties, Inc. notifies Registered Holders.
All such notices shall be deemed to have been duly given: at
the time of delivery, if delivered by hand; five business days after being
deposited in the mail, postage prepaid, if delivered by first-class mail; on the
next business day if timely delivered to a courier guaranteeing overnight
delivery; and if by facsimile transmission, at the time such facsimile
transmission is sent, provided that if the facsimile transmission is sent after
the close of a business day or on a day that is not a business day, the notice
shall be deemed to have been duly given on the next business day.
Section 17. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws.
Section 18. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Company and the Registered Holders, and
their respective successors and assigns. Nothing in this Agreement is intended
or shall be construed to confer upon any other person any right, remedy or
claim, in equity or at law, or to impose upon any other person any duty,
liability or obligation.
Section 19. Termination. This Agreement shall terminate at the
close of business on the third Trading Day following the latest Warrant
Expiration Date or such earlier date upon which all Warrant Shares have been
issued and delivered upon the full exercise of all Warrants.
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IN WITNESS WHEREOF, the Company and the undersigned Initial
Registered Holder have caused this Agreement to be duly executed as of the date
first above written.
TRIZEC PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
INITIAL REGISTERED HOLDER:
EMERALD BLUE KFT
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Managing Director
12
EXHIBIT A
FORM OF WARRANT CERTIFICATE
No. EXPIRATION DATE:
------ ----------
[________] WARRANTS
FOR THE PURCHASE OF
COMMON STOCK, PAR VALUE $0.01, OF
TRIZEC PROPERTIES, INC.
THIS CERTIFIES THAT:
FOR VALUE RECEIVED __________________________________________
or registered assigns (the "Registered Holder") is the owner of
___________________ Warrants ("Warrants") to purchase Common Stock.
This Warrant Certificate and each Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the warrant agreement dated [_________], 2002 and
executed by Trizec Properties, Inc. (the "Company") and the Initial Registered
Holder (the "Warrant Agreement"), and agreed to by each Registered Holder. Terms
not defined herein shall have the meanings assigned to them in the Warrant
Agreement.
Each Warrant initially entitles the Registered Holder to
purchase, subject to the terms and conditions set forth in this Warrant
Certificate and the Warrant Agreement, one fully paid and non-assessable share
of Common Stock, $0.01 par value per share ("Common Stock"), of the Company, at
any time on or after the Initial Exercise Date but not after the Warrant
Expiration Date (as defined on the reverse hereof), upon the presentation and
surrender of this Warrant Certificate with the Subscription Form on the reverse
hereof duly executed by the Registered Holder or his attorney-in-fact duly
authorized in writing, at the Corporate Office of the Company, accompanied by
payment of $_____ per share of Common Stock (the "Exercise Price"), subject to
adjustment from time to time pursuant to the terms and provisions the Warrant
Agreement in lawful money of the United States of America in cash or by check or
immediately available funds payable to TRIZEC PROPERTIES, INC.; provided that
such payment may at the option of the Registered Holder be alternatively made
through a "cashless" exercise procedure, in accordance with such requirements
and procedures as are acceptable to the Company in its sole discretion, whereby
a specified number of the Warrant Shares issued upon exercise of any Warrant
shall be delivered directly to a broker or dealer designated by the Company for
sale, the number of which is to sufficient to generate cash to pay the Exercise
Price and to satisfy any related withholding tax obligations.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed, manually or in facsimile by its officer
thereunto duly authorized.
Date: TRIZEC PROPERTIES, INC.
-------, -----
By:
-------------------------
Authorized Signatory
A-1
CERTAIN TERMS GOVERNING THE WARRANTS
In the event of certain contingencies provided for in the Warrant Agreement, the
Exercise Price and/or the number of shares of Common Stock subject to purchase
upon the exercise of each Warrant represented hereby ("Warrant Shares") are
subject to modification or adjustment.
The term "Warrant Expiration Date" shall mean 5:00 p.m. (New York time) on the
Expiration Date set forth on the face hereof, or such earlier date as all
Warrants evidenced by this Warrant Certificate shall be exercised; provided that
if such date shall in the State of New York be a holiday or a day on which banks
are authorized or required to close, then 5:00 p.m. (New York time) on the next
following day which in the State of New York is not a holiday or a day on which
banks are authorized or required to close; provided further that if such date
shall fall on a date on which a Shelf Registration Statement is not effective,
then 5:00 p.m. ten (10) days following the date on which a Shelf Registration
Statement first becomes effective.
Each Warrant represented hereby is exercisable at the option of the Registered
Holder, but no fractional Warrant Shares will be issued. In the case of the
exercise of less than all the Warrants represented hereby, the Company shall
cancel this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate or Warrant Certificates of like tenor for the
balance of such Warrants, all as required by the Warrant Agreement.
Prior to due presentment for registration of transfer hereof, the Company may
deem and treat the Registered Holder as the absolute owner hereof and of each
Warrant represented hereby (notwithstanding any notations of ownership or
writing hereon made by anyone other than a duly authorized officer of the
Company) for all purposes, except as provided in the Warrant Agreement, and
shall not be affected by any notice to the contrary.
This Warrant Certificate shall be transferable only on the registry books of the
Company and only if this Warrant Certificate is presented at the office of the
Company with the assignment form hereof duly endorsed or accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, duly executed by the Registered Holder or his attorney-in-fact duly
authorized in writing together with payment of any applicable taxes, including
transfer taxes, if any, that may be imposed by a relevant governmental
authority. Upon due presentment for registration of transfer of this Warrant
Certificate at such office, the Company shall execute, issue and deliver to the
transferee or transferees a new Warrant Certificate or Certificates representing
an equal aggregate number of Warrants.
Prior to the exercise of any Warrant represented hereby, the Registered Holder
shall not be entitled to any rights of a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflict of laws
principles.
SUBSCRIPTION FORM
(To Be Executed by the Registered Holder in Order to Exercise Warrants)
THE UNDERSIGNED REGISTERED HOLDER hereby elects to exercise ________
Warrants of TRIZEC PROPERTIES, INC. represented by this Warrant Certificate, and
to purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in the name of:
______________________________________________________ whose Social Insurance or
Social Security Number or other identifying number is: ________________________
and be delivered to:___________________________________________________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered the
Holder at the following address:_______________________________________________
(please print or type name and address)
Social Insurance or Social Security Number or other identifying
number:
__________________________________
Date:__________________________ Signature:__________________________
ASSIGNMENT FORM
(To Be Executed by the Registered Holder in Order to Assign Warrants)
FOR VALUE RECEIVED, the Undersigned Registered Holder hereby sells, assigns and
transfers unto _______________________________________________________whose
Social Insurance or Social Security Number or other identifying number is:
________________________________________________________ and whose address is:
________________________________________________________________________________
(please print or type name and address)
the following number of the Warrants represented by this Warrant Certificate:
___________________, and hereby irrevocably constitutes and appoints ___________
Attorney to transfer this Warrant Certificate on the books of the Company, with
full power of substitution in the premises.
Social Insurance or Social Security Number or other identifying number:_________
Date:__________________________ Signature:__________________________
SIGNATURE GUARANTEED
__________________________
(The signature must be guaranteed by an Eligible Institution, except that no
guarantee is required if the signature is that of an Eligible Institution)
A-2
SCHEDULE A
TERMS OF WARRANTS AND WARRANT CERTIFICATES
----------------------------------------------------------------------------------------------------------------------
Warrant Certificate No. Reference TZH Number of Warrants Exercise Price* Expiration Date
Option Holder
----------------------------------------------------------------------------------------------------------------------
1 Ballon 35,000 23.50 10/31/02
2 Ballon 25,000 35.05 10/31/02
3 Ballon 10,000 34.50 10/31/02
4 ▇▇▇▇ 6,250 22.85 11/01/07
5 Birchall 25,000 24.29 03/20/08
6 Birchall 100,000 28.85 12/11/03
7 Birchall 250,000 18.75 12/06/02
8 Birchall 150,000 20.50 01/06/04
9 ▇▇▇▇▇ 33,581 18.25 02/28/04
10 ▇▇▇▇▇▇▇ 50,000 23.50 06/30/04
11 ▇▇▇▇▇▇▇ 50,000 24.40 06/30/04
12 ▇▇▇▇▇▇▇ 50,000 28.85 12/11/03
13 ▇▇▇▇▇▇▇ 13,000 18.75 12/06/02
14 ▇▇▇▇▇▇▇ 87,000 19.13 06/30/04
15 ▇▇▇▇▇▇▇▇, R. 25,000 23.50 12/31/03
16 ▇▇▇▇▇▇▇▇, R. 150,000 29.75 12/31/03
17 ▇▇▇▇ 50,000 32.25 12/16/02
18 ▇▇▇▇ 10,000 34.50 12/16/02
19 ▇▇▇▇ 40,000 28.85 12/16/02
20 ▇▇▇▇▇▇▇ 5,000 23.50 05/08/03
21 ▇▇▇▇▇▇ 25,000 23.50 06/30/04
22 ▇▇▇▇▇▇ 75,000 20.85 06/30/04
23 ▇▇▇▇▇▇ 60,000 35.05 06/30/04
24 ▇▇▇▇▇▇ 5,000 23.50 05/08/03
25 ▇▇▇▇▇▇▇ 15,000 23.50 06/30/03
26 ▇▇▇▇▇▇▇ 30,000 34.50 06/30/03
27 ▇▇▇▇▇▇▇▇▇ 5,000 23.50 05/08/03
28 ▇▇▇▇▇▇▇ 3,750 32.00 06/30/03
29 Favit 25,000 23.50 06/30/04
30 Favit 56,250 20.85 06/30/04
31 Favit 25,000 34.50 06/30/04
32 Favit 54,700 28.85 12/11/03
33 ▇▇▇▇▇▇▇▇ 20,000 18.75 12/06/02
34 Forsyth 1,250 23.50 12/01/07
35 ▇▇▇▇▇▇▇▇▇ 2,500 23.50 12/01/07
36 ▇▇▇▇▇▇ 3,750 32.00 06/30/03
37 ▇▇▇▇▇▇▇ 2,500 23.50 12/01/07
38 Haq 3,750 32.00 06/30/03
39 Hawie 2,600 18.75 12/06/02
40 Heron 2,500 18.75 12/06/02
41 ▇▇▇▇▇▇ 100,000 22.75 03/31/03
* Except for Certificate Nos. 128 and 164, Exercise Prices are expressed in
Canadian dollars and will automatically be converted into U.S. dollars based on
the exchange rate for these currencies on the close of business on the business
day immediately preceding the Initial Exercise Date.
S-1
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Warrant Certificate No. Reference TZH Number of Warrants Exercise Price* Expiration Date
Option Holder
----------------------------------------------------------------------------------------------------------------------
42 ▇▇▇▇▇▇ 50,000 28.35 03/31/03
43 ▇▇▇▇▇▇ 50,000 32.25 03/31/03
44 Joa 1,250 23.50 12/01/07
45 Jupp 5,000 23.50 05/08/03
46 ▇▇▇▇▇ 75,000 30.90 12/31/02
47 ▇▇▇▇▇▇▇▇ 10,000 23.50 06/30/03
48 ▇▇▇▇▇▇▇▇ 10,000 34.50 06/30/03
49 ▇▇▇ 5,000 23.50 05/08/03
50 L'Heureux 102,000 28.85 12/11/03
51 ▇▇▇▇▇, A. 25,000 30.90 05/31/02
52 ▇▇▇▇▇, A. 25,000 34.50 05/31/02
53 ▇▇▇▇▇, A. 21,000 28.85 05/31/02
54 ▇▇▇▇▇, R. 200,000 29.75 06/08/02
55 ▇▇▇▇▇▇▇▇ 2,000 23.50 12/01/07
56 ▇▇▇▇▇▇▇▇ 5,000 34.50 10/28/04
57 ▇▇▇▇▇▇▇▇▇ 10,000 23.50 05/31/03
58 ▇▇▇▇▇▇▇▇▇ 10,000 34.50 05/31/03
59 ▇▇▇▇▇▇▇▇ 1,250 23.50 06/30/02
60 ▇▇▇▇▇▇▇ 1,900 18.75 12/06/02
61 ▇▇▇▇▇▇▇▇ 1,250 25.60 06/30/03
62 ▇▇▇▇▇▇▇▇ 3,750 32.00 06/30/03
63 Morsink 50,000 23.50 06/30/03
64 Morsink 250,000 25.40 06/30/03
65 ▇▇▇▇▇▇▇▇ 6,250 22.85 11/01/07
66 ▇▇▇▇▇▇▇▇ 200,000 35.80 11/07/04
67 ▇▇▇▇▇▇▇▇ 25,000 18.00 11/08/03
68 Munk, P. 100,000 23.75 12/21/07
69 Munk, P. 250,000 24.40 12/06/06
70 Munk, P. 1,000,000 15.625 07/22/03
71 ▇▇▇▇▇▇▇ 2,700 20.50 05/08/03
72 ▇▇▇▇▇▇ 10,000 22.75 06/30/02
73 Purves 50,000 34.50 10/28/04
74 Purves 31,500 28.85 12/11/03
75 Ranger 7,500 23.50 12/01/07
76 Ranger 15,000 30.90 12/08/05
77 Ranger 10,000 34.50 10/28/04
78 ▇▇▇▇▇▇▇▇ 3,750 32.00 06/30/03
79 Rotman 6,250 22.75 10/31/07
80 Rotman 150,000 15.00 09/23/03
81 ▇▇▇▇▇▇▇ 6,250 22.85 11/01/07
82 ▇▇▇▇▇ 10,000 23.50 05/08/03
83 Satchu 10,000 23.50 05/08/03
84 ▇▇▇▇▇▇▇▇▇▇ 200,000 30.35 12/31/02
85 ▇▇▇▇▇▇▇▇▇▇ 100,000 18.25 12/31/02
86 ▇▇▇▇▇▇▇▇▇▇ 100,000 18.13 12/31/02
87 Stirling 50,000 22.75 10/31/03
88 ▇▇▇▇▇▇▇▇, G. 7,000 23.50 01/31/03
89 ▇▇▇▇▇▇▇▇, G. 13,936 24.40 01/31/03
* Except for Certificate Nos. 128 and 164, Exercise Prices are expressed in
Canadian dollars and will automatically be converted into U.S. dollars based on
the exchange rate for these currencies on the close of business on the business
day immediately preceding the Initial Exercise Date.
S-2
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Warrant Certificate No. Reference TZH Number of Warrants Exercise Price* Expiration Date
Option Holder
----------------------------------------------------------------------------------------------------------------------
90 Thomson, R. 6,250 22.75 10/31/07
91 ▇▇▇▇▇▇▇▇ 1,250 25.60 06/30/03
92 ▇▇▇▇▇▇▇▇ 3,750 32.00 06/30/03
93 Verkaik 1,250 23.50 06/30/02
94 ▇▇▇▇▇▇▇▇ 300,000 30.90 08/16/03
95 ▇▇▇▇▇▇▇▇ 30,000 24.40 04/30/03
96 ▇▇▇▇▇▇▇▇ 20,000 20.90 04/30/03
97 ▇▇▇▇▇▇▇▇ 29,700 34.50 04/30/03
98 ▇▇▇▇▇▇▇▇ 20,000 28.85 04/30/03
99 ▇▇▇▇▇▇▇ 25,000 23.50 04/30/03
▇▇▇ ▇▇▇▇▇▇▇ 25,000 34.50 04/30/03
▇▇▇ ▇▇▇▇▇▇▇ 25,000 28.85 04/30/03
102 ▇▇▇▇▇▇▇ 100,000 23.75 12/21/07
103 ▇▇▇▇▇▇▇ 250,000 24.40 12/06/06
104 ▇▇▇▇▇▇▇ 150,000 34.50 10/28/04
105 ▇▇▇▇▇▇▇ 150,000 28.85 12/11/03
106 ▇▇▇▇▇▇▇ 100,000 18.75 12/06/02
107 ▇▇▇▇▇▇▇ 211,000 15.00 09/23/03
108 Wrong 10,000 23.50 05/08/03
109 ▇▇▇▇ 12,000 25.10 10/31/08
110 ▇▇▇▇ 12,000 26.60 10/31/08
111 ▇▇▇▇ 12,000 28.10 10/31/08
112 ▇▇▇▇ 18,750 22.85 11/01/07
113 Birchall 75,000 24.29 03/20/08
114 ▇▇▇▇▇▇▇ 3,000 25.62 01/09/09
115 ▇▇▇▇▇▇▇ 3,000 27.12 01/09/09
116 ▇▇▇▇▇▇▇ 3,000 28.62 01/09/09
117 ▇▇▇▇▇ 12,000 25.10 05/08/03
118 ▇▇▇▇▇ 12,000 26.60 05/08/03
119 ▇▇▇▇▇ 12,000 28.10 05/08/03
120 ▇▇▇▇▇ 75,000 22.75 05/08/03
121 ▇▇▇▇▇▇▇ 1,250 32.00 02/08/06
122 ▇▇▇▇▇▇ 1,250 32.00 02/08/06
123 ▇▇▇▇▇▇ 100,000 25.46 05/11/08
▇▇▇ ▇▇▇ 1,250 32.00 02/08/06
▇▇▇ ▇▇▇▇▇, ▇. 2,000 27.60 09/24/08
▇▇▇ ▇▇▇▇▇, ▇. 2,000 29.10 09/24/08
▇▇▇ ▇▇▇▇▇, ▇. 2,000 30.60 09/24/08
128 Mackenzie, C. 175,000 USD 14.87 12/31/07
129 ▇▇▇▇▇▇▇▇ 3,750 25.60 07/26/07
130 ▇▇▇▇▇▇▇▇ 1,250 32.00 02/08/06
▇▇▇ ▇▇▇▇▇▇▇▇ 6,000 25.10 10/31/08
▇▇▇ ▇▇▇▇▇▇▇▇ 3,125 22.85 11/01/07
133 Munk, A. 12,000 25.10 10/31/08
134 Munk, A. 12,000 26.60 10/31/08
135 Munk, A. 12,000 28.10 10/31/08
136 Munk, A. 25,000 22.75 10/31/07
137 Munk, P. 300,000 23.75 12/21/07
* Except for Certificate Nos. 128 and 164, Exercise Prices are expressed in
Canadian dollars and will automatically be converted into U.S. dollars based on
the exchange rate for these currencies on the close of business on the business
day immediately preceding the Initial Exercise Date.
S-3
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Warrant Certificate No. Reference TZH Number of Warrants Exercise Price* Expiration Date
Option Holder
----------------------------------------------------------------------------------------------------------------------
138 Munk, P. 250,000 24.40 12/06/06
139 ▇▇▇▇▇▇▇▇ 1,250 32.00 02/08/06
140 Rotman 12,000 25.10 10/31/08
141 Rotman 12,000 26.60 10/31/08
142 Rotman 12,000 28.10 10/31/08
143 Rotman 18,750 22.75 10/31/07
144 ▇▇▇▇▇▇▇ 6,000 25.10 10/31/08
145 ▇▇▇▇▇▇▇ 3,125 22.85 11/01/07
146 ▇▇▇▇▇ 3,000 25.62 01/09/09
147 ▇▇▇▇▇ 3,000 27.12 01/09/09
148 ▇▇▇▇▇ 3,000 28.62 01/09/09
149 ▇▇▇▇▇▇▇▇▇ 20,000 15.63 07/21/03
150 Steets 44,611 23.50 01/31/04
151 Steets 87,650 23.40 01/31/04
152 Steets 202,860 28.85 12/11/03
153 ▇▇▇▇▇▇▇▇, G. 96,057 34.50 01/31/03
154 ▇▇▇▇▇▇▇▇, G. 124,539 28.85 01/31/03
155 Thomson, R. 6,000 25.10 10/31/08
156 Thomson, R. 3,125 22.75 10/31/07
157 ▇▇▇▇▇▇▇▇ 3,750 25.60 07/26/07
158 ▇▇▇▇▇▇▇▇ 1,250 32.00 02/08/06
▇▇▇ ▇▇▇▇▇▇▇ 4,167 24.40 12/06/06
▇▇▇ ▇▇▇▇▇▇▇ 7,500 28.85 12/11/03
▇▇▇ ▇▇▇▇▇▇▇ 1,042 28.85 12/11/03
162 ▇▇▇▇▇ 10,000 25.46 05/11/08
163 ▇▇▇▇▇ 5,000 23.50 12/01/07
164 Mackenzie, C. 500,000 USD 14.87 12/31/07
Total Warrants 8,772,418
* Except for Certificate Nos. 128 and 164, Exercise Prices are expressed in
Canadian dollars and will automatically be converted into U.S. dollars based on
the exchange rate for these currencies on the close of business on the business
day immediately preceding the Initial Exercise Date.
S-4