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 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
(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.
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 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 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.
(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 OTHER WISE DISPOSED OF UNLESS (A) (i) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECU RITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE DELIV ERED 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 PROVI SIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, SATISFAC TORY TO COUNSEL FOR
THE ISSUER, SHALL HAVE BEEN OB TAINED WITH RESPECT TO SUCH DISPOSITION AND
(B) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLI CABLE
STATE SECURITIES LAWS OR AN EXEMPTION THERE FROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFI CATE 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 IN CREASE FROM
TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. ANY INDIVIDUAL
WHO ATTEMPTS TO BENEFI CIALLY OWN SHARES IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT
DEFINITION HAVE THE MEANINGS DE FINED 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 SHARE HOLDER WHO SO REQUESTS. IF THE
RESTRICTIONS ON OWNER SHIP 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 INCORPO RATION, 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.
CENTERMARK PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
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
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 nationally 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:
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, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 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.
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 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.
(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.
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.
(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 SATISFAC
TORY 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 SECURI
TIES 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
MAINTE ▇▇▇▇▇ 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 IMMEDI ATELY 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 OWNER SHIP AND TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS. IF THE RESTRIC
TIONS 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
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 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: