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Exhibit A
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF ARE SUBJECT TO THE PROVISIONS OF A STOCKHOLDERS' AGREEMENT, DATED AS OF
JULY 1, 1996, AND NEITHER THIS WARRANT NOR THE COMMON STOCK OR OTHER SECURITIES
RECEIVABLE UPON EXERCISE HEREOF ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT (INCLUDING
PROVISIONS UNDER WHICH THE HOLDER HEREOF GRANTS A RIGHT OF FIRST REFUSAL ON THE
SALE OF THIS WARRANT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER, AND THE ISSUER'S ARTICLES OF INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL
BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER FROM
THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION THEREFROM.
No. B-1 New York, New York
July 1, 1996
CENTERMARK PROPERTIES, INC.
CLASS B COMMON STOCK PURCHASE WARRANT
CENTERMARK PROPERTIES, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE COMPANY
LIMITED, in its capacity as Trustee of Westfield America Trust, is entitled,
subject
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to the terms and conditions set forth below, (a) to purchase from the Company
six million two hundred forty-six thousand ninety-six (6,246,096) duly
authorized, validly issued, fully paid and nonassessable shares of (i) Class B-1
Common Stock, par value $.01 per share (the "Class B-1 Common Stock"), of the
Company, if this Warrant is exercised by the trustee (the "WAT Trustee") of
Westfield America Trust ("WAT"), a public trust constituted under the laws of
Australia pursuant to the Westfield America Trust Deed, dated March 28, 1996,
with Perpetual Trustee Company Limited, as Trustee, on behalf of WAT, or (ii)
Class B-2 Common Stock, par value $.01 per share (the "Class B-2 Common Stock"
and, together with the Class B-1 Common Stock, the "Common Stock"), of the
Company, if this Warrant is exercised by a holder other than the WAT Trustee, in
each case at a purchase price per share of $16.01 (as adjusted from time to
time, the "Exercise Price"), at any time or from time to time on or after the
date hereof and (b) to exercise the other rights set forth herein. The number
and character of such shares of Common Stock and the Exercise Price are subject
to adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at any
time and from time to time on or after the date hereof and prior to July 1, 2016
(the "Expiration Date") by the holder hereof, in whole or in part, on any
business day by:
(a) the presentation of this Warrant, together with a duly
executed copy of the Exercise Form attached hereto as Exhibit A and the
other documentation set forth therein, to the Secretary of the Company
at its principal offices, upon which presentation the Secretary of the
Company shall make appropriate notations in the stock transfer records
(and other records, as appropriate) of the Company indicating the
number of shares of Common Stock issued pursuant to such exercise and
the number of shares of Common Stock, if any, into which the Warrant
thereafter shall remain exercisable; and
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(b) the payment, by wire transfer of immediately available
funds or certified or official bank check payable to the order of the
Company of an amount equal to the amount obtained by multiplying (i)
the number of shares of Common Stock designated in such Exercise Form
by (ii) the Exercise Price.
This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as
practicable after the proper exercise of this Warrant in whole or in part, and
in any event within 30 days thereafter, the Company will cause to be issued in
the name of and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon such
exercise;
(b) in case such exercise is in part only, a new Warrant of
like tenor, calling on its face for the number of shares of Common
Stock equal to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the holder hereof
upon such exercise as provided in Section 1 hereof.
3. Reservation of Shares of Common Stock. The Company
covenants that it will at all times keep available such number of authorized
shares of its Common Stock issuable upon exercise of the Warrant, which will be
sufficient to permit the exercise of the Warrant for the full number of shares
of Common Stock into which the Warrant is exercisable during the exercise period
specified herein. The Company further covenants that such shares of Common
Stock, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable.
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4. Adjustment of Number of Shares of Common Stock. The number
and kind of securities purchasable upon exercise of the Warrant shall be subject
to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the Expiration Date subdivide its
Common Stock by stock split or otherwise, or combine its capital stock
by reverse stock split or otherwise, or issue additional securities as
a dividend with respect to any shares of its Common Stock, as the case
may be, the number of shares of Common Stock issuable on the exercise
of this Warrant shall forthwith be proportionately increased and the
Exercise Price shall be proportionately decreased in the case of a
subdivision or stock dividend, and the number of shares of Common
Stock issuable on the exercise of this Warrant shall forthwith be
proportionately decreased and the Exercise Price shall be
proportionately increased in the case of a combination. Any adjustment
under this Section 4(a) shall become effective at the close of business
on the date the sub division or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date
is fixed, upon the payment of such dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a subdivision,
combination or stock dividend covered by paragraph (a) above), merger,
consolidation or any return of capital or other capital distribution,
except for periodic distributions made pro-rata among the shareholders
of a class of stock or units which are not in redemption of any shares
of Common Stock, or any similar capital transaction that would affect
the capital structure of the Company, excluding any payment of an
ordinary cash dividend in respect of the operations of the Company,
then in such event (i) the number of shares of Common Stock issuable
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upon exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is fair and
equitable to the holder hereof and the holders of Common Stock.
(c) Mergers, etc. If prior to the Expiration Date, the Company
shall be merged or consolidated into a new entity or if the Company
shall transfer all or substantially all of its assets to another
entity, then upon a subsequent exercise of this Warrant, the holder
hereof shall be entitled to receive securities in the new transferee
entity equal to what the holder hereof would have received had it
exercised this Warrant and owned shares of Class B Common Stock
immediately prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
this Warrant, the Company promptly shall notify the holder of this
Warrant of such event and of the number of shares and the type of
securities or property thereafter purchasable upon exercise of this
Warrant.
(e) Disputes. If a dispute arises between the Company and the
holder hereof in relation to an adjustment to: (i) the number of
shares of Common Stock issuable upon exercise hereof, (ii) the
Exercise Price, or (iii) some or all of such factors, to be made
pursuant to this Section 4, either party is entitled to refer the
dispute (but no other dispute) to an Expert. "Expert" means an
independent, international investment banking firm agreed to by the
Company and the holder hereof, or (in default of agreement), an
independent, international investment banking firm nominated (at the
request of any party) by the President or the head for the time being
of the Australian Institute of Chartered Accountants. The Expert must:
(1) resolve the dispute
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in a timely manner as an expert and not as an arbitrator, and (2)
determine the party or parties responsible for paying the costs of the
Expert having regard to his findings concerning resolution of the
dispute, provided that the holder hereof will not bear any expense in
excess of its pro rata interest in the Company.
5. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the exercise price then in effect with respect
to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This
Warrant shall be subject to certain limited restrictions on transferability
(including a right of first refusal) set forth in the Stockholders' Agreement,
dated as of July 1, 1996, among the Company, the original holder of this Warrant
and certain other parties, a copy of which shall be furnished without charge to
the holder hereof upon request, and the Company's articles of incorporation.
(b) Neither this Warrant nor the Common Stock issuable upon
exercise hereof may be transferred, sold, pledged, hypothecated or otherwise
disposed of, and this Warrant may not be exercised, unless (A) such disposition
or exercise is pursuant to an effective registration statement under the
Securities Act, (B) the holder hereof shall have delivered to the Company an
opinion of counsel, which opinion and counsel shall be satisfactory to the
Company, to the effect that such disposition or exercise is exempt from the
provisions of Section 5 of the Securities Act, or (C) a no-action letter from
the Securities and Exchange Commission, satisfactory to counsel for the Company,
shall have been obtained with respect to such disposition or exercise (D) the
Warrant or Common Stock is being exercised by (or transferred to) the WAT
Trustee, the manager of WAT or any of its affiliates.
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(c) Each Warrant certificate shall bear the legend set forth
on the first page of this certificate.
(d) Any certificates representing Common Stock issued upon
exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (A) (i)
SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR
(iii) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION,
SATISFACTORY TO COUNSEL FOR THE ISSUER, SHALL HAVE BEEN OBTAINED WITH
RESPECT TO SUCH DISPOSITION AND (B) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON OWNER SHIP AND TRANSFER FOR THE PURPOSE OF THE
ISSUER'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NO
INDIVIDUAL MAY BENEFICIALLY OWN COMMON SHARES IN EXCESS OF THE THEN
APPLICABLE OWNERSHIP LIMIT WITH RESPECT TO COMMON SHARES, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN
SHARES IN EXCESS OF THE ABOVE LIMITATION MUST IMMEDIATELY NOTIFY THE
COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT DEFINITION HAVE THE
MEANINGS DEFINED IN THE ISSUER'S ARTICLES OF INCORPORATION, AS THE SAME
MAY BE FURTHER AMENDED
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FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON
OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH SHAREHOLDER
WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE
VIOLATED, THE COMMON SHARES REPRESENTED HEREBY WILL BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED TRANSFERRED TO A SPECIAL
TRUST AS PROVIDED IN THE ARTICLES OF INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS AMENDED,
LIMITING THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S COMMON STOCK.
7. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
holders hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented, amended
or otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
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9. Governing Law. This Warrant shall be governed by the laws
of the State of New York as applied to agreements among New York residents made
and to be performed entirely within the State of New York.
CENTERMARK PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
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EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by the attached Warrant, to purchase __________ shares of
[Class B-1][Class B-2] Common Stock of Centermark Properties, Inc. (the
"Company"), par value $.01 per share ("Common Stock"), as provided for in the
Warrant Certificate and herewith tenders in payment for such shares of Common
Stock payment of the purchase price in full in the form of cash or a check
payable to the order of the Company in the amount of $_______, all in accordance
with the terms of the Warrant Certificate. The undersigned requests that a
certificate for such shares of Common Stock be registered in the name of
___________________________, whose address is
_______________________________________, and that such certificate shall be
delivered to _______________________________ at the following address:
________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise and
on transferability set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned is acquiring the Common Stock for its
own account and not with a view to, or for sale in connection with, any
distribution thereof that would violate or require registration under any U.S.
federal or state securities or "Blue Sky" laws. The undersigned understands that
the Common Stock has not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), may not be offered or
sold except as permitted by the Warrant Certificate and shall be required to
bear a legend as set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned agrees, on its own behalf and on
behalf of any account[s] for which the undersigned is acting as hereinafter
stated, that if the
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EXHIBIT A
undersigned should reoffer, resell, pledge or transfer any Common Stock, the
undersigned will do so only in accordance with the Warrant Certificate; and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nation ally recognized
United States counsel, which opinion and counsel shall be satisfactory to the
Company,][a no-action letter from the Securities and Exchange Commission,
satisfactory to counsel to the Company] to the effect that the offer of the
Common Stock to and the purchase of the Common Stock by the undersigned is
exempt from registration under the Securities Act.]
Dated: ______________________
_________________________________________
By:______________________________________
Name:
Title:
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THIS WARRANT IS SUBJECT TO THE PROVISIONS OF AN INVESTORS' AGREEMENT, DATED AS
OF May 21, 1997, AND THIS WARRANT IS NOT ASSIGNABLE OR OTHERWISE TRANSFERABLE
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH INVESTORS' AGREEMENT (INCLUDING
PROVISIONS UNDER WHICH THE HOLDER HEREOF GRANTS A RIGHT OF FIRST REFUSAL ON THE
SALE OF THIS WARRANT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER. THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE HEREOF ARE
ALSO SUBJECT TO THE OWNERSHIP LIMITATIONS SET FORTH IN THE ISSUER'S ARTICLES OF
INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL
BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER FROM
THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION THEREFROM.
No. 2 New York, New York
May 21, 1997
WESTFIELD AMERICA, INC.
COMMON STOCK PURCHASE WARRANT
WESTFIELD AMERICA, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE COMPANY
LIMITED (the "WAT Trustee"), in its capacity as Trustee of Westfield America
Trust ("WAT"), a public unit trust constituted under the laws of Australia
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pursuant to the Westfield America Trust Deed, dated March 28, 1996, as amended
on May 9, 1996, is entitled, subject to the terms and conditions set forth
below, (a) to purchase from the Company Two Million Eighty-nine Thousand Five
Hundred Fifty-two (2,089,552) duly authorized, validly issued, fully paid and
nonassessable shares of common stock, par value $.01 per share, of the Company,
(the "Common Stock") at a purchase price per share of $15.00(as adjusted from
time to time, the "Exercise Price"), at any time or from time to time on or
after the date hereof and (b) to exercise the other rights set forth herein. The
number and character of such shares of Common Stock and the Exercise Price are
subject to adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at any
time and from time to time on or after the date hereof and prior to May 21, 2017
(the "Expiration Date") by the holder hereof, in whole or in part, on any
business day by:
(a) the presentation of this Warrant, together with a duly
executed copy of the Exercise Form attached hereto as Exhibit A and the
other documentation set forth therein, to the Secretary of the Company
at its principal offices, upon which presentation the Secretary of the
Company shall make appropriate notations in the stock transfer records
(and other records, as appropriate) of the Company indicating the
number of shares of Common Stock issued pursuant to such exercise and
the number of shares of Common Stock, if any, into which the Warrant
thereafter shall remain exercisable; and
(b) the payment, by wire transfer of immediately available
funds or certified or official bank check payable to the order of the
Company of an amount equal to the amount obtained by multiplying (i)
the number of shares of Common Stock designated in such Exercise Form
by (ii) the Exercise Price.
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This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as practicable
after the proper exercise of this Warrant in whole or in part, and in any event
within 30 days thereafter, the Company will cause to be issued in the name of
and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon such
exercise;
(b) in case such exercise is in part only, a new Warrant of
like tenor, calling on its face for the number of shares of Common
Stock equal to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the holder hereof
upon such exercise as provided in Section 1 hereof.
3. Reservation of Shares of Common Stock. The Company covenants that it
will at all times keep available such number of authorized shares of its Common
Stock issuable upon exercise of the Warrant, which will be sufficient to permit
the exercise of the Warrant for the full number of shares of Common Stock into
which the Warrant is exercisable during the exercise period specified herein.
The Company further covenants that such shares of Common Stock, when issued
pursuant to the exercise of this Warrant, will be duly and validly issued, fully
paid and nonassessable.
4. Adjustment of Number of Shares of Common Stock. The number and kind
of securities purchasable upon exercise of the Warrant shall be subject to
adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the Expiration Date subdivide its
Common Stock by stock
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split or otherwise, or combine its capital stock by reverse stock split
or otherwise, or issue additional securities as a dividend with respect
to any shares of its Common Stock, as the case may be, the number of
shares of Common Stock issuable on the exercise of this Warrant shall
forthwith be proportionately increased and the Exercise Price shall be
proportionately decreased in the case of a subdivision or stock
dividend, and the number of shares of Common Stock issuable on the
exercise of this Warrant shall forthwith be proportionately decreased
and the Exercise Price shall be proportionately increased in the case
of a combination. Any adjustment under this Section 4(a) shall become
effective at the close of business on the date the subdivision or
combination becomes effective, or as of the record date of such
dividend, or in the event that no record date is fixed, upon the
payment of such dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a subdivision,
combination or stock dividend covered by paragraph (a) above), merger,
consolidation or any return of capital or other capital distribution,
except for periodic distributions made pro rata among the shareholders
of a class of stock or units which are not in redemption of any shares
of Common Stock, or any similar capital transaction that would affect
the capital structure of the Company, excluding any payment of an
ordinary cash dividend in respect of the operations of the Company,
then in such event (i) the number of shares of Common Stock issuable
upon exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is fair and
equitable to the holder hereof and the holders of Common Stock.
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(c) Mergers, etc. If prior to the Expiration Date, the Company
shall be merged or consolidated into a new entity or if the Company
shall transfer all or substantially all of its assets to another
entity, then upon a subsequent exercise of this Warrant, the holder
hereof shall be entitled to receive securities in the new transferee
entity equal to what the holder hereof would have received had it
exercised this Warrant and owned shares of Common Stock immediately
prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
this Warrant, the Company promptly shall notify the holder of this
Warrant of such event and of the number of shares and the type of
securities or property thereafter purchasable upon exercise of this
Warrant.
(e) Disputes. If a dispute arises between the Company and the
holder hereof in relation to an adjustment to: (i) the number of
shares of Common Stock issuable upon exercise hereof, (ii) the Exercise
Price, or (iii) some or all of such factors, to be made pursuant to
this Section 4, either party is entitled to refer the dispute (but no
other dispute) to an Expert. "Expert" means an independent,
international investment banking firm agreed to by the Company and the
holder hereof, or (in default of agreement), an independent,
international investment banking firm nominated (at the request of any
party) by the President or the head for the time being of the
Australian Institute of Chartered Accountants. The Expert must: (1)
resolve the dispute in a timely manner as an expert and not as an
arbitrator, and (2) determine the party or parties responsible for
paying the costs of the Expert having regard to his findings concerning
resolution of the dispute, provided that the holder hereof will not
bear any expense in excess of its pro rata interest in the Company.
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5. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the exercise price then in effect with respect
to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This Warrant shall
be subject to certain limited restrictions on transferability (including a right
of first refusal) set forth in the Investors' Agreement, dated as of May [ ],
1997, among the Company, the original holder of this Warrant and certain other
parties, a copy of which shall be furnished without charge to the holder hereof
upon request. In addition, the shares of Common Stock or other securities
receivable upon exercise hereof are subject to the ownership limitations set
forth in the Company's articles of incorporation.
(b) Neither this Warrant nor the Common Stock issuable upon
exercise hereof may be transferred, sold, pledged, hypothecated or
otherwise disposed of, and this Warrant may not be exercised, unless
(A) such disposition or exercise is pursuant to an effective
registration statement under the Securities Act, (B) the holder hereof
shall have delivered to the Company an opinion of counsel, which
opinion and counsel shall be satisfactory to the Company, to the effect
that such disposition or exercise is exempt from the provisions of
Section 5 of the Securities Act, (C) a no-action letter from the
Securities and Exchange Commission, satisfactory to counsel for the
Company, shall have been obtained with respect to such disposition or
exercise, or (D) the Warrant or Common Stock is being exercised by (or
transferred to) the WAT Trustee, the manager of WAT or any of its
affiliates.
(c) Each Warrant certificate shall bear the legend set forth
on the first page of this certificate.
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(d) Any certificates representing Common Stock issued upon
exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS (A) (i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE
ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO
COUNSEL FOR THE ISSUER, SHALL HAVE BEEN OBTAINED WITH RESPECT TO
SUCH DISPOSITION AND (B) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE
PURPOSE OF THE ISSUER'S MAINTENANCE OF ITS STATUS AS A REAL
ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"). NO INDIVIDUAL MAY BENEFICIALLY OWN
COMMON SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT
WITH RESPECT TO COMMON SHARES, WHICH MAY DECREASE OR INCREASE
FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER.
ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS
OF THE ABOVE LIMITATION MUST IMMEDIATELY NOTIFY THE COMPANY. ALL
TERMS USED IN THIS LEGEND WITHOUT DEFINITION HAVE THE MEANINGS
DEFINED IN THE ISSUER'S ARTICLES OF INCORPORATION, AS THE SAME
MAY BE FURTHER AMENDED FROM TIME TO TIME, A COPY OF WHICH,
INCLUDING THE RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
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REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE
VIOLATED, THE COMMON SHARES REPRESENTED HEREBY WILL BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED
TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF
INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS
AND CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS
AMENDED, LIMITING THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S
COMMON STOCK.
7. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented, amended or
otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
9. Governing Law. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of New York.
WESTFIELD AMERICA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
& Secretary
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EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by the attached Warrant, to purchase __________ shares of Common
Stock of Westfield America, Inc. (the "Company"), par value $.01 per share
("Common Stock"), as provided for in the Warrant Certificate and herewith
tenders in payment for such shares of Common Stock payment of the purchase price
in full in the form of cash or a check payable to the order of the Company in
the amount of $_______, all in accordance with the terms of the Warrant
Certificate. The undersigned requests that a certificate for such shares of
Common Stock be registered in the name of ___________________________, whose
address is _______________________________________, and that such certificate
shall be delivered to _______________________________ at the following address:
______________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise and on
transferability set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned is acquiring the Common Stock for its
own account and not with a view to, or for sale in connection with, any
distribution thereof that would violate or require registration under any U.S.
federal or state securities or "Blue Sky" laws. The undersigned understands that
the Common Stock has not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), may not be offered or
sold except as permitted by the Warrant Certificate and shall be required to
bear a legend as set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned agrees, on its own behalf and on
behalf of any account[s] for which the undersigned is acting as hereinafter
stated, that if the
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EXHIBIT A
undersigned should reoffer, resell, pledge or transfer any Common Stock, the
undersigned will do so only in accordance with the Warrant Certificate; and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nation ally recognized
United States counsel, which opinion and counsel shall be satisfactory to the
Company,] [a no-action letter from the Securities and Exchange Commission,
satisfactory to counsel to the Company] to the effect that the offer of the
Common Stock to and the purchase of the Common Stock by the undersigned is
exempt from registration under the Securities Act.]
Dated: ______________________
_______________________________________
By:____________________________________
Name:
Title: