EXHIBIT 1.3
FORM OF
WARRANT PURCHASE AGREEMENT
INLAND RETAIL REAL ESTATE TRUST, INC.
1,250,000 SHARES OF COMMON STOCK
$.01 PAR VALUE
(FORM OF)
WARRANT PURCHASE AGREEMENT
_________________, 1998
This Warrant Purchase Agreement (the "Agreement") is made by and between
Inland Retail Real Estate Trust, Inc., a Maryland corporation (the "Company"),
and Inland Securities Corporation, an Illinois corporation (the
"Warrantholder").
The Company hereby agrees to issue and sell, and the Warrantholder agrees
to purchase, for the price of $.0008 per warrant, warrants as hereinafter
described (the "Soliciting Dealer Warrants") to purchase one share of the
Company's shares of common stock, $.01 par value per share (the "Shares") for
each 40 Shares sold by the Dealer Manager and/or Soliciting Dealers, up to a
maximum of 1,250,000 Soliciting Dealer Warrants. The price per Share at which
the Soliciting Dealer Warrants are exercisable and the number of Shares
purchasable per Soliciting Dealer Warrant are subject to adjustment pursuant to
Subsection (b) of Section 7 and Section 8 hereof. The Soliciting Dealer
Warrants are being purchased in connection with a "best efforts" offering of
50,000,000 Shares (the "Offering"), pursuant to that certain Dealer Manager
Agreement (the "Dealer Manager Agreement"), dated ________________, 1998 between
the Company and the Warrantholder as the Dealer Manager and as a representative
of the Soliciting Dealers who may receive Soliciting Dealer Warrants. Unless
otherwise defined, capitalized terms used herein shall have the same meaning as
in the Registration Statement (on Form S-11) relating to the Offering.
The issuance of the Soliciting Dealer Warrants shall occur quarterly
commencing 60 days after the date on which Shares are first sold pursuant to the
Offering and such issuances shall be subject to the terms and conditions set
forth in the Dealer Manager Agreement.
In consideration of the foregoing and for the purpose of defining the terms
and provisions of the Soliciting Dealer Warrants and the respective rights and
obligations thereunder, the Company and the Warrantholder, for value received,
hereby agree as follows:
1. FORM AND TRANSFERABILITY OF SOLICITING DEALER WARRANTS.
(a) REGISTRATION. The Soliciting Dealer Warrant(s) shall be numbered
and shall be registered on the books of the Company when issued.
(b) FORM OF SOLICITING DEALER WARRANTS. The text and form of the
Soliciting Dealer Warrants and of the Election to Purchase shall be
substantially as set forth in Exhibit "A" and Exhibit "B," respectively,
attached hereto and incorporated herein. The price per Share (the "Warrant
Price") and the number of Shares issuable upon exercise of the Soliciting
Dealer Warrants are subject to adjustment upon the occurrence of certain
events, all as hereinafter provided. The Soliciting Dealer Warrants shall be
dated as of the date of signature thereof by the Company either upon initial
issuance or upon division, exchange, substitution or transfer.
(c) TRANSFER. The Soliciting Dealer Warrants shall be transferable
only on the books of the Company maintained at its principal office or that of
its designated transfer agent, if designated, upon delivery thereof duly
endorsed by the Warrantholder or by its duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. Upon any registration of transfer, the Company shall
execute and deliver a new Soliciting Dealer Warrant to the person entitled
thereto. Assignments or transfers shall be made pursuant to the form of
Assignment attached as Exhibit "C" hereto.
(d) LIMITATIONS ON TRANSFER OF SOLICITING DEALER WARRANT. The
Soliciting Dealer Warrants shall not be sold, transferred, assigned, exchanged
or hypothecated (collectively "Transfer") by the Warrantholder, except to:
(i) one or more persons, each of whom on the date of transfer is an officer and
director of the Warrantholder or an officer and director or partner of a
successor to the Warrantholder as provided in clause (iv) of this Subsection
(d); (ii) a partnership or partnerships, all of the partners of which are a
Warrantholder and one or more persons, each of whom on the date of transfer is a
"Principal" (as that term is defined in the next paragraph of this
Subsection (d)) of a Warrantholder or a Principal of a successor to a
Warrantholder; (iii) broker-dealer firms which have executed, and are not then
in default of, a "Soliciting Dealers Agreement" entered into with the Dealer
Manager (the "Selling Group") and one or more persons, each of whom on the date
of transfer is a Principal of a member of the Selling Group or a Principal of a
successor to a member of the Selling Group; provided that the Dealer Manager may
not Transfer Soliciting Dealer Warrants to members of the Selling Group in
connection with the sale of Shares to residents of the States of Minnesota or
South Carolina; (iv) a successor to a Warrantholder through merger or
consolidation; (v) a purchaser of all or substantially all of a Warrantholder's
assets; or by (vi) will, pursuant to the laws of descent and distribution, or
the operation of law; provided, however, that commencing one year from the date
of issuance, a Transfer may be made to a third party solely for the purpose of
immediate exercise of the Soliciting Dealer Warrant and sale of the underlying
Shares by such third party. Each Soliciting Dealer Warrant may be divided or
combined, upon written request to the Company by the Warrantholder, into a
certificate or certificates representing the right to purchase the same
aggregate number of Shares.
As used above, the term "Principal" shall include an officer, director,
partner, member or stockholder of an entity who is also a Principal of that
entity, as the term "Principal" is defined by the Rules and By-Laws of the
National Association of Securities Dealers, Inc.
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Unless the context indicates otherwise, the term "Warrantholder" shall
include any transferee of the Soliciting Dealer Warrant, and the term "Warrant"
shall include any and all Soliciting Dealer Warrants outstanding pursuant to
this Agreement, including those evidenced by a certificate or certificates
issued upon division, exchange, substitution or transfer pursuant to this
Agreement.
(e) EXCHANGE OR ASSIGNMENT OF SOLICITING DEALER WARRANT. Any Soliciting
Dealer Warrant certificate may be assigned or exchanged without expense for
another certificate or certificates entitling the Warrantholder to purchase a
like aggregate number of Shares as the certificate or certificates surrendered
then entitled such Warrantholder to purchase. Any Warrantholder desiring to
exchange a Soliciting Dealer Warrant certificate shall make a request in
writing, delivered to the Company, and shall surrender, properly endorsed, the
certificate evidencing the Soliciting Dealer Warrant to be so assigned or
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Soliciting Dealer Warrant certificate as so requested.
Any Warrantholder desiring to assign a Soliciting Dealer Warrant shall make
such request in writing delivered to the Company, and shall surrender, properly
endorsed, the certificate evidencing the Soliciting Dealer Warrant to be so
assigned, with an instrument of assignment duly executed accompanied by proper
evidence of assignment, succession or authority to transfer, and funds
sufficient to pay any transfer tax, whereupon the Company shall, without charge,
execute and deliver a new Soliciting Dealer Warrant certificate in the name of
the assignee named in such instrument of assignment and the original Soliciting
Dealer Warrant certificate shall promptly be canceled.
(f) Notwithstanding any provision in this Agreement to the contrary, the
Dealer Manager will not transfer and the Company will not issue the Soliciting
Dealer Warrants to Soliciting Dealers registered in the States of Minnesota or
South Carolina, in connection with the sale of Shares to residents of the States
of Minnesota or South Carolina, respectively.
2. TERMS AND EXERCISE OF SOLICITING DEALER WARRANTS.
(a) EXERCISE PERIOD. Subject to the terms of this Agreement, the
Warrantholder shall have the right to purchase one Share from the Company at a
price of $12 (120% of the initial offering price per Share), subject to
modification, as provided in Subsection (b) of Section 7 and in Section 8 below,
during the time period beginning one year from the date the Soliciting Dealer
Warrants are issued to the Warrantholder and ending on the date which shall be
five years from the date of the first issuance of a Soliciting Dealer Warrant
pursuant to this Agreement (the "Exercise Period"), or if any such date is a day
on which banking institutions in Chicago, Illinois are authorized by law to
close, then on the next succeeding day which shall not be such a day, to
purchase from the Company up to the number of fully paid and nonassessable
Shares which the Warrantholder may at the time be entitled to purchase pursuant
to the Soliciting Dealer Warrant, a form of which is attached hereto as
Exhibit "A."
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(b) METHOD OF EXERCISE. The Soliciting Dealer Warrant shall be exercised
by surrender to the Company, at its principal office in Oak Brook, Illinois or
at the office of the Company's stock transfer agent, if any, or at such other
address as the Company may designate by notice in writing to the Warrantholder
at the address of the Warrantholder appearing on the books of the Company, of
the certificate evidencing the Soliciting Dealer Warrant to be exercised,
together with the form of Election to Purchase, included as Exhibit "B" hereto,
duly completed and signed, and upon payment to the Company of the Warrant Price
(as determined in accordance with the provisions of Sections 7 and 8 hereof),
for the number of Shares with respect to which such Soliciting Dealer Warrant is
then being exercised together with all taxes applicable upon such exercise.
Payment of the aggregate Warrant Price for the number of Shares with respect to
which the Soliciting Dealer Warrant is being exercised shall be made in cash or
by certified check or cashier's check, payable to the order of the Company. A
Soliciting Dealer Warrant may not be exercised if the Shares to be issued upon
the exercise of the Soliciting Dealer Warrant have not been registered (or be
exempt from registration) in the state of residence of the holder of the
Soliciting Dealer Warrant or if a Prospectus required under the laws of such
state cannot be delivered to the buyer on behalf of the Company. In addition,
holders of Soliciting Dealer Warrants may not exercise the Soliciting Dealer
Warrant to the extent such exercise will cause them to exceed the ownership
limits set forth in the Company's Articles. If any Soliciting Dealer Warrant
has not been exercised by the end of the Exercise Period, it will terminate and
the Warrantholder will have no further rights thereunder.
(c) PARTIAL EXERCISE. The Soliciting Dealer Warrants shall be
exercisable, at the election of the Warrantholder, either in full or from time
to time in part and, in the event that the Soliciting Dealer Warrant is
exercised with respect to less than all of the Shares specified therein at any
time prior to the Termination Date, a new certificate evidencing the remaining
Soliciting Dealer Warrants shall be issued by the Company.
(d) SHARE ISSUANCE UPON EXERCISE. Upon such surrender of the Soliciting
Dealer Warrant certificate and payment of such Warrant Price, the Company shall
issue and cause to be delivered with all reasonable dispatch to the
Warrantholder in such name or names as the Warrantholder may designate in
writing, a certificate or certificates for the number of full Shares so
purchased upon the exercise of the Soliciting Dealer Warrant, together with
cash, as provided in Section 9 hereof, with respect to any fractional Shares
otherwise issuable upon such surrender. Such Shares shall bear the legend
described in Section 5 below and any other legends generally placed on
certificates for the Shares, including a legend provided for in the Articles
with regard to restrictions on transferability for the purpose of the Company's
maintenance of its status as a REIT under the Code and to prohibit exceeding the
ownership limits set forth in the Company's Articles, and the transfer and/or
sale of any Shares so issued shall be limited in the manner and to the extent
provided by such legends and ownership limits and the Articles and By-laws of
the Company. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of such Shares as of the close of business on the date of the
surrender of the Soliciting Dealer Warrant and payment of the Warrant Price, as
hereinafter defined,
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notwithstanding that the certificates representing such Shares shall not
actually have been delivered or that the stock transfer books of the Company
shall then be closed.
3. MUTILATED OR MISSING SOLICITING DEALER WARRANT.
In case the certificate or certificates evidencing the Soliciting Dealer
Warrant shall be mutilated, lost, stolen or destroyed, the Company shall, at the
request of the Warrantholder, issue and deliver in exchange and substitution for
and upon cancellation of the mutilated certificate of certificates, or in lieu
of and in substitution for the certificate or certificates lost, stolen or
destroyed, a new Soliciting Dealer Warrant certificate or certificates of like
tenor and date and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Soliciting Dealer Warrant, and of reasonable bond of
indemnity, if requested, also satisfactory to the Company in form and amount and
at the applicant's cost.
4. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep reserved
so long as the Soliciting Dealer Warrants remains outstanding, out of its
authorized Shares, such number of Shares as shall be subject to purchase under
the outstanding Soliciting Dealer Warrants.
5. LEGEND ON SHARES ISSUED UPON EXERCISE OF SOLICITING DEALER WARRANT.
Each certificate for Shares initially issued upon exercise of the
Soliciting Dealer Warrant, unless at the time of exercise such Shares are
registered with the Securities and Exchange Commission (the "Commission"), under
the Securities Act of 1933, as amended (the "Act"), shall bear the following
legend:
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THESE SHARES SHALL
BE MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby need no longer be subject to such restrictions.
Certificates for Shares shall also bear the legend provided for in the Company's
Articles.
6. PAYMENT OF TAXES.
The Company shall pay all documentary stamp taxes, if any, attributable to
the initial issuance of the Shares; provided, however, that the Company shall
not be required to pay any
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tax or taxes which may be payable with respect to any secondary transfer of
the Soliciting Dealer Warrants or the Shares.
7. WARRANT PRICE.
(a) The price per Share at which Shares shall be purchasable on the
exercise of the Soliciting Dealer Warrant shall be $12 (the "Warrant Price"),
subject, however, to adjustment as provided in Subsection (b) of this Section 7
and in Section 8.
(b) Notwithstanding Subsection (a) of this Section 7 if, at the time of
any exercise of the Soliciting Dealer Warrant, the Offering Price of Shares
pursuant to the Prospectus has been increased, then the Warrant Price shall be
adjusted (the "Adjusted Warrant Price") to be equal to one hundred twenty
percent (120%) of the then current Offering Price of Shares offered or sold
pursuant to the Prospectus.
8. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of the
Soliciting Dealer Warrant and the Warrant Price shall be subject to adjustment
from time to time (in addition to any adjustments in accordance with
Subsection (b) of Section 7 above) upon the happening of certain events, as
follows:
(a) In case the Company shall: (i) pay a dividend in Shares or make a
distribution in Shares; (ii) subdivide its outstanding Shares; (iii) combine its
outstanding Shares into a smaller number of Shares, or (iv) issue, by
reclassification of its Shares, other securities of the Company, then the number
and kind of securities purchasable upon the exercise of the Soliciting Dealer
Warrant immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the number and kind of securities of the Company
which it would have owned or would have been entitled to receive after the
happening of any of the events described above had the Soliciting Dealer Warrant
been exercised immediately prior to the happening of such event or any record
date with respect thereto. Any adjustment made pursuant to this Subsection (a)
shall become effective on the effective date of such event retroactive to the
record date, if any, for such event.
(b) No adjustment in the number of securities purchasable hereunder shall
be required unless such adjustment would require an increase or decrease of at
least one percent (1%) in the number of securities (calculated to the nearest
full Share thereof) then purchasable upon the exercise of the Soliciting Dealer
Warrant or, if the Soliciting Dealer Warrant is not then exercisable, the number
of securities purchasable upon the exercise of the Soliciting Dealer Warrant on
the first date thereafter that the Soliciting Dealer Warrant becomes
exercisable; provided, however, that any adjustment which by reason of this
Subsection (b) is not required to be made immediately shall be carried forward
and taken into account in any subsequent adjustment.
(c) Whenever the number of Shares purchasable upon the exercise of the
Soliciting Dealer Warrant is adjusted as herein provided, the Warrant Price
shall be adjusted by
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multiplying such Warrant Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Shares purchasable
upon the exercise of the Soliciting Dealer Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Shares so
purchasable immediately thereafter.
(d) For the purpose of this Section 8, the term "Shares" shall mean:
(i) the class of stock designated as the Shares of the Company at the date of
this Agreement; or (ii) any other class of stock resulting from successive
changes or reclassification of such Shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that at any time, as a result of an adjustment made pursuant to this
Section 8, the Warrantholder shall become entitled to purchase any shares of
stock of the Company other than Shares, thereafter the number of such other
shares of stock of the Company so purchasable upon the exercise of the
Soliciting Dealer Warrants and the Warrant Price shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in this Section 8.
(e) Whenever the number of Shares and/or securities purchasable upon the
exercise of the Soliciting Dealer Warrants or the Warrant Price is adjusted as
herein provided, the Company shall cause to be promptly mailed to the
Warrantholder by first class mail, postage prepaid, notice of such adjustment
setting forth the number of Shares and/or securities purchasable upon the
exercise of the Soliciting Dealer Warrants and/or the Warrant Price after such
adjustment, a brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made.
(f) In case of any reclassification, capital reclassification, capital
reorganization or other change in the outstanding Shares of the Company (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of an issuance of Shares by way of dividend
or other distribution, or of a subdivision or combination of the Shares), or in
case of any consolidation or merger of the Company with or into another
corporation or entity (other than a merger with a subsidiary in which merger the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change in the outstanding
Shares of the Company) as a result of which the holders of the Company's Shares
become holders of other shares of securities of the Company or of another
corporation or entity, or such holders receive cash or other assets, or in case
of any sale or conveyance to another corporation of the property, assets or
business of the Company as an entirety or substantially as an entirety, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter upon payment of the Warrant Price in effect immediately
prior to such action to purchase upon the exercise of the Soliciting Dealer
Warrant the kind and number of securities and property which it would have owned
or have been entitled to have received after the happening of such
reclassification, capital reorganization, change in the outstanding Shares of
the Company, consolidation, merger, sale or conveyance had the Soliciting Dealer
Warrants been exercised immediately prior to such action.
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The agreement referred to in this Subsection (f) shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 8. The provisions of this
Subsection (f) shall similarly apply to successive reclassification, capital
reorganizations, changes in the outstanding Shares of the Company,
consolidations, mergers, sales or conveyances.
(g) Except as provided in this Section 8, no adjustment with respect to
any dividends shall be made during the term of the Soliciting Dealer Warrants or
upon the exercise of the Soliciting Dealer Warrants.
(h) Irrespective of any adjustments in the Warrant Price (pursuant to
Subsection (b) of Section 7 above or this Section 8) or the number or kind of
securities purchasable upon the exercise of the Soliciting Dealer Warrant, the
Soliciting Dealer Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price or number or kind of securities
stated in the Soliciting Dealer Warrant initially issuable pursuant to this
Agreement.
9. FRACTIONAL INTEREST.
The Company shall not be required to issue fractional Shares or securities
upon the exercise of the Soliciting Dealer Warrants. If any such fractional
Shares would, except for the provisions of this Section 9, be issuable upon the
exercise of the Soliciting Dealer Warrants (or any specified portion thereof),
the Company may, at its election, pay an amount in cash equal to the then
current market price per Share multiplied by such fraction. For purposes of
this Agreement, the term "current market price" shall mean: on any date the
average of the Closing Price (as defined below) per Share for the five
consecutive Trading Days (as defined below) ending on such date. The "Closing
Price" on any date means the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the principal national securities exchange on which the Shares are
listed or admitted to trading or, if the Shares are not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by The Nasdaq Stock Market, Inc. ("Nasdaq"), or, if Nasdaq
is no longer in use, the principal automated quotation system that may then be
in use or, if the Shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Shares selected by the Board, or if there is no
professional market maker making a market in the Shares, the average of the last
ten (10) sales pursuant to the Offering if the Offering has not concluded, or if
the Offering has concluded, the average of the last ten (10) purchases by the
Company pursuant to its Share Repurchase Program (the "SRP"), and if there are
fewer than ten (10) of such purchases under the SRP, then the average of such
lesser number of purchases, or, if the SRP is not then in existence, the price
at which the Company is then offering Shares to the public if the Company is
then engaged in a public offering of Shares, or if the Company is not then
offering Shares to the public, the price at which a Stockholder may purchase
Shares pursuant to the Company's Distribution Reinvestment Program (the "DRP")
if such DRP is then in
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existence, or if the DRP is not then in existence, the fair market value of
the Shares as determined by the Company, in its sole discretion. "Trading
Day" shall mean a day on which the principal national securities exchange or
national automated quotation system on which the Shares are listed or
admitted to trading is open for the transaction of business or, if the Shares
are not listed or admitted to trading on any national securities exchange or
national automated quotation system, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of
Illinois are authorized or obligated by law or executive order to close.
10. NO RIGHTS AS STOCKHOLDER; NOTICES OF WARRANTHOLDER.
Nothing contained in this Agreement or in the Soliciting Dealer Warrant
shall be construed as conferring upon the Warrantholder or its transferee any
rights as a Stockholder of the Company, either at law or in equity, including
the right to vote, receive dividends, consents or notices as a Stockholder with
respect to any meeting of Stockholders for the election of directors of the
Company or for any other matter.
11. REGISTRATION OF SOLICITING DEALER WARRANTS AND SHARES PURCHASABLE
THEREUNDER.
The distribution of the Soliciting Dealer Warrants and the Shares
purchasable thereunder to the Dealer Manager and/or to one or more Soliciting
Dealers is being registered as part of the Offering. The Company undertakes to
make additional filings with the Commission to the extent required to keep the
issuance of Shares issuable pursuant to the Soliciting Dealer Warrants to
Soliciting Dealers registered through the date which shall be five years from
the date of the first issuance of a Soliciting Dealer Warrant pursuant to this
Agreement. Any sales or transfers of Shares so issued shall be subject in all
respects to the limitations and restrictions contained in Subsection (d) of
Section 2 and to the provisions of Section 5 above.
12. INDEMNIFICATION.
In the event of the filing of any registration statement with respect to
the Soliciting Dealer Warrants or the Shares pursuant to Section 11 above, the
Company and the Warrantholder (and/or selling Warrantholder or such holder of
Shares, as the case may be), shall agree to indemnify and hold harmless the
other to the same extent and in the same manner as provided in the Dealer
Manager Agreement.
13. CONTRIBUTION.
In order to provide for just and equitable contribution under the Act in
any case in which: (a) the Warrantholder or any holder of Shares makes a claim
for indemnification pursuant to Section 12 hereof, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right to appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 12 hereof
provide for
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indemnification in such case; or (b) contribution under the Act may be
required on the part of the Warrantholder or any holder of Shares, the
Company and the Warrantholder, or such holder of Shares, shall agree to
contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (which shall, for all purposes of this Agreement,
including, but not limited to, all costs of defense and investigation and all
attorneys' fees), in either such case (after contribution from others) on the
basis of relative fault as well as any other relevant equitable
considerations in the same manner as provided by the parties in the Dealer
Manager Agreement.
14. NOTICES.
Any notice given pursuant to this Agreement by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, return receipt requested:
(a) If to the Warrantholder, addressed to:
Inland Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(b) If to the Company, addressed to:
Inland Retail Real Estate Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Each party hereto may, from time to time, change the address to which
notices to it are to be delivered or mailed hereunder by notice in accordance
herewith to the other party.
15. PARTIES IN INTEREST.
Nothing in this Agreement shall be construed to give to any Person other
than the Company, the Warrantholder and, to the extent expressed, any holder of
Shares, any Person controlling the Company or the Warrantholder or any holder of
Shares, directors of the Company, nominees for directors (if any) named in the
Prospectus, or officers of the Company who have signed the Registration
Statement, any legal or equitable right, remedy or claim
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under this Agreement, and this Agreement shall be for the sole and exclusive
benefit of the aforementioned parties.
16. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit of
the parties listed in Section 15 above shall bind and inure to the benefit of
their respective executors, administrators, successors and assigns hereunder;
provided, however, that the rights of the Warrantholder or holder of Shares
shall be assignable only to those Persons specified in Subsection (d) of
Section 1 hereof, in which event such assignee shall be bound by each of the
terms and conditions of this Agreement.
17. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall not merge or consolidate with or into any other Person or
sell all or substantially all of its property to another Person unless it
complies with the provisions of Subsection (f) of Section 8 hereof.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All statements contained in any schedule, exhibit, certificate or other
instrument delivered by or on behalf of the parties hereto, or in connection
with the transactions contemplated by this Agreement, shall be deemed to be
representations and warranties hereunder. Notwithstanding any investigations
made by or on behalf of the parties to this Agreement, all representations,
warranties and agreements made by the parties to this Agreement or pursuant
hereto shall survive.
19. CHOICE OF LAW.
This Agreement and the rights of the parties hereunder shall be governed by
and construed in accordance with the laws of the State of Illinois, including
all matters of construction, validity, performance and enforcement, and without
giving effect to the principles of conflict of laws.
20. JURISDICTION.
The parties submit to the jurisdiction of the Courts of the State of
Illinois or a Federal Court impaneled in the State of Illinois for the
resolution of all legal disputes arising under the terms of this Agreement.
21. ENTIRE AGREEMENT.
Except as provided herein, this Agreement, including exhibits, contains the
entire agreement of the parties, and supersedes all existing negotiations,
representations or agreements and all other oral, written or other
communications between them concerning the subject matter of this Agreement.
11
22. SEVERABILITY.
If any provision of this Agreement is unenforceable, invalid or violates
applicable law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Agreement.
23. CAPTIONS.
The captions in this Agreement are inserted only as a matter of convenience
and for reference and shall not be deemed to define, limit, enlarge or describe
the scope of this Agreement or the relationship of the parties, and shall not
affect this Agreement or the construction of any provisions herein.
24. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
Inland Retail Real Estate Trust, Inc.
a Maryland corporation
By:
-------------------------------------
-------------------------------------
Name and Title
Inland Securities Corporation,
an Illinois corporation
By:
-----------------------------------
-----------------------------------
Name and Title
12
EXHIBIT A
INLAND RETAIL REAL ESTATE TRUST, INC.
SOLICITING DEALER WARRANT NO. ____________
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE
SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT
TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION
IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO RESTRICTED BY THAT
CERTAIN WARRANT PURCHASE AGREEMENT DATED AS OF _________________, 1998
A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.
WARRANT TO PURCHASE ________ SHARES OF COMMON STOCK OF INLAND RETAIL
REAL ESTATE TRUST, INC.
Exercisable commencing on _________________, 19__
Void after 5:00 P.M. Central Standard Time on ________________, 2003
(the "Exercise Closing Date").
THIS CERTIFIES that, for value received, _____________________________ (the
"Warrantholder"), or registered assigns, is entitled, subject to the terms and
conditions set forth in this Warrant (the "Warrant"), to purchase from Inland
Retail Real Estate Trust, Inc., a Maryland corporation (the "Company"),
_________ fully paid and nonassessable shares of Common Stock, $.01 par value
per share (the "Shares") of the Company at any time during the period commencing
on ______________, 19__ and continuing up to 5:00 P.M. central standard time on
______________, 2003 for $12 per Share, and is subject to all the terms thereof,
including the limitations on transferability as set forth in that certain
Warrant Purchase Agreement between Inland Securities Corporation and the Company
dated _________________, 1998. Pursuant to the Warrant Purchase Agreement, the
exercise price of Shares purchased pursuant to this Warrant may be amended to a
price equal to one hundred percent (120%) of the then current offering price of
Shares of the Company pursuant to the terms of the Prospectus originally dated
___________, 1998."
THIS WARRANT may be exercised by the holder thereof, in whole or in part,
by the presentation and surrender of this Warrant with the form of Election to
Purchase duly executed, with signature(s) guaranteed, at the principal office of
the Company (or at such other address as the Company may designate by notice to
the holder hereof at the address of such
holder appearing on the books of the Company), and upon payment to the
Company of the purchase price in cash or by certified check or bank cashier's
check. The Shares so purchased shall be deemed to be issued to the holder
hereof as the record owner of such Shares as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for
such Shares. The Shares so purchased shall be registered to the holder (and,
if requested, certificates issued) promptly after this Warrant shall have
been so exercised and unless this Warrant has expired or has been exercised,
in full, a new Warrant identical in form, but representing the number of
Shares with respect to which this Warrant shall not have been exercised,
shall also be issued to the holder hereof.
NOTHING CONTAINED herein shall be construed to confer upon the holder of
this Warrant, as such, any of the rights of a Stockholder of the Company.
Inland Retail Real Estate Trust, Inc.,
a Maryland corporation
By:
------------------------------------
Name and Title
2
EXHIBIT B
INLAND RETAIL REAL ESTATE TRUST, INC.
ELECTION TO PURCHASE
SOLICITING DEALER WARRANT
Inland Retail Real Estate Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached warrant (the "Warrant"), to purchase thereunder
______ shares of the Common Stock, $.01 par value per share, of Inland Retail
Real Estate Trust, Inc. (the "Shares") provided for therein and hereby tenders
$____________ in payment of the actual exercise price thereof, and requests that
the Shares be issued in the name of ___________________________________________
_______________________________________________________________________________
(Please Print Name, Address and SSN or FEIN of Stockholder below)
_______________________________________________________________________________
and, if said number of Shares shall not be the total possible number of Shares
purchasable under the attached Warrant certificate, that a new Warrant
certificate for the balance of the Shares purchasable under the attached Warrant
certificate be registered in the name of the undersigned Warrantholder or his
assignee as indicated below and delivered at the address state below:
Dated: _____________________________
Name of Warrantholder or Assignee: ___________________________________________
(Please Print)
_______________________________________________________________________________
_______________________________________________________________________________
Signature:_____________________________________________________________________
EXHIBIT C
INLAND RETAIL REAL ESTATE TRUST, INC.
SOLICITING DEALER WARRANT ASSIGNMENT
(To be signed only upon assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
_______________________________________________________________________________
(Please Print Name, Address and SSN or FEIN of Assignee Below)
________________________________________________________________________________
the attached Soliciting Dealer Warrant No. ____________, to purchase ________
shares of Common Stock, $.01 par value per share, of Inland Retail Real Estate
Trust, Inc. (the "Company"), hereby irrevocably constituting and appointing the
Company and/or its transfer agent as its attorney to transfer said Warrant on
the books of the Company, with full power of substitution.
Dated: __________________________
________________________________________
Signature of Registered Holder
Signature Guaranteed:
__________________________________
Note: The above signature must correspond with
the name as written upon the face of the attached
Warrant certificate in every particular respect,
without alteration, enlargement or any change
whatever, unless this Warrant has been duly
assigned.