THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER, THAT SUCH OFFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS
OTHERWISE IN COMPLIANCE WITH THE SECURITIES ACT AND SUCH LAWS. THE SHARES
ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO CERTAIN RIGHTS AND
OBLIGATIONS AS SET FORTH IN A REGISTRATION RIGHTS AGREEMENT, DATED AS OF
NOVEMBER 14, 1997, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE COMPANY.
AMENDED AND RESTATED WARRANT
To Purchase Common Stock of
EQUIVEST FINANCE, INC.
THIS IS TO CERTIFY THAT CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(the "Initial Holder") a Delaware limited liability company, or its registered
assigns, is entitled, at any time prior to the Expiration Date (as hereinafter
defined), to purchase from EQUIVEST FINANCE, INC., a Florida corporation (the
"Company"), one hundred twenty-five thousand (125,000) shares of Common Stock
(as hereinafter defined and subject to adjustment as provided herein), in whole
or in part, at a purchase price, subject to adjustment, as provided herein, of
$3.50 per share and one hundred twenty-five thousand shares of Common Stock (as
hereinafter defined and subject to adjustment as provided herein), in whole or
in part, at a purchase price, subject to adjustment, as provided herein, of
$4.00 per share, all on the terms and conditions and pursuant to the provisions
hereinafter set forth. This Ameded and Restated Warrant amends, restates,
supercedes and replaces the "Warrant to Purchase Shares of Common Stock of
Equivest Finance, Inc." issued on November 14, 1997 by Company to Initial
Holder.
Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the Initial Date, other than any
Warrant Stock.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which banking institutions in the State of New York are
authorized or required by law or executive order to close or a day which is
declared a national holiday.
"Close of Business" shall have the meaning set forth in
Section 2(a).
"Commission" shall mean the Securities and Exchange Commission
as from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it, then the body performing such duties
on such date.
"Common Stock" shall mean the class of stock which, at the
date of this instrument, is designated as common stock, $.05 par value, of the
Company and the class or classes of stock, if any, into which such common stock
may thereafter be changed or reclassified.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder, as in effect
from time to time.
"Excluded Shares" means (without duplication) (i) all shares
of Common Stock issued in an Offering, and (ii) those shares of Common Stock
issued or issuable as described in Schedule A attached hereto and incorporated
herein.
"Exercise Price" shall have the meaning set forth in Section
2(b) hereof.
"Expiration Date" shall have the meaning set forth in Section
2(a) hereof.
"Fair Market Value" of a share of Common Stock shall mean, as
of any specific date of determination (the "Determination Date") the price per
share of such Common Stock equal to the average of the last sale price of such
Common Stock on each of the ten trading days (or such lesser number of days as
shares shall have been listed or traded) prior to the Determination Date on the
principal exchange on which the Common Stock may at the time be listed; or, if
there shall have been no sales on such exchange on any such trading day, the
average of the closing bid and asked prices on such exchange on such trading
day; or, if there is no such bid and asked price on any such trading day, on the
next preceding date when such bid and asked price occurred; or, if the Common
Stock shall not be so listed, the average of the closing sales prices as
reported by NASDAQ, the American Stock Exchange, the New York Stock Exchange or
whichever exchange on which Company's Common Stock is listed, at the end of each
of the ten trading days prior to the Determination Date; provided that if one
class of the Common Stock is listed or reported as described in this sentence
but the class of Common Stock with respect to which Fair Market Value is being
measured is not so listed or reported, then the Fair Market Value per share with
respect to such unlisted and unreported class shall be identical to such listed
or reported class; and provided further that if Common Stock is not publicly
traded and listed on a national stock exchange or on NASDAQ on the Determination
Date, the Fair Market Value shall be an amount as reasonably determined in good
faith by the Company's Board of Directors upon a review of the relevant factors
and reflecting the unique characteristics of the Company and supported by a
written opinion of an investment banking firm that is nationally recognized in
the United States, it being the intention of the parties that the value of a
share of Common Stock shall constitute a pro rata portion of the Company's
equity on a fully diluted basis, valuing the Company as a going concern and
without discount in respect of a minority interest.
"Holder" shall mean the Initial Holder and any Person or
Persons to whom this Warrant is transferred pursuant to Section 5 hereof
including those Person or Persons in whose name or names the Warrant is
registered from time to time on the Warrant Register.
"Initial Date" shall mean November 14, 1997.
"Initial Holder" shall mean Credit Suisse First Boston
Mortgage LLC.
"Offering" shall mean an offering of newly issued shares of
any class of Common Stock (whether alone or in conjunction with any secondary
public offering) placed or underwritten by an investment banking firm that is
nationally recognized in the United States which produces net cash proceeds for
the Company or its affiliates (as defined in Rule 12b-2 of the Exchange Act of
1934, as amended) of at least $35,000,000 and immediately after
which the Common Stock is listed or admitted for trading on the NASDAQ Small Cap
or National Market, the American Stock Exchange or the New York Stock Exchange.
"Office of the Company" shall mean the principal executive
offices of the Company as notified from time to time pursuant to Section 14 or
the office or agency of the Company designated pursuant to Section 12.
"Outstanding" shall mean, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all issued shares of Common Stock, except shares then owned or held by or for
the account of the Company or any wholly-owned subsidiary thereof.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Initial Date, by and among the Company and the Initial
Holder, a copy of which is on file at the Office of the Company.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, as in
effect from time to time.
"Stock Register" shall mean the register maintained by the
Company to record ownership and transfer of Common Stock.
"Warrant" or "Warrants" shall mean this Warrant and all
warrants issued upon transfer, division or combination of, or in substitution
for, thereof.
"Warrant Register" shall mean the register maintained by the
Company to record ownership and transfers of this Warrant pursuant to the terms
hereof.
"Warrant Stock" shall mean the shares of Common Stock
purchased upon exercise of this Warrant.
Duration and Exercise of Warrant.
Duration. The Warrant shall expire on November 14,
2002 (the "Expiration Date"). The Warrant may be exercised at any time on or
prior to the last Business Day prior to the Expiration Date; provided, however,
that if exercised on such last Business Day, such exercise must occur before
5:00 p.m. Eastern Standard Time (the "Close Of Business") on such Day.
Thereafter, the Warrant will become wholly void and of no value.
Exercise. Subject to the provisions of this
Agreement, the Holder of this Warrant shall have the right to purchase from the
Company (and the Company shall issue and sell to such Holder) the aggregate
number of fully paid and nonassessable shares of Common Stock of the Company set
forth on the first page hereof (or such additional number of shares as may be
further provided in this Agreement) at the purchase price per share set forth on
the first page hereof, as adjusted from time to time as provided in this
Agreement provided that no such adjustment shall cause such purchase price per
share to be less than par value (such price, as so adjusted being referred to
herein as the "Exercise Price"). The Exercise Price shall be payable (i) in cash
or by bank cashier's check in United States funds payable to the order of the
Company or (ii) if the Common Stock is listed on a securities exchange or
interdealer quotation system, in the manner set forth in Section 2(c) hereof if
requested by the Holder in the notice of exercise hereafter described. The
Warrant shall be exercisable by (i) delivering to the Company the form of notice
of exercise attached hereto as Exhibit A duly completed and signed by the Holder
or by the duly appointed legal representative or duly authorized attorney
thereof, and (ii) within five Business Days thereafter,
depositing with the Company the certificate evidencing the Warrant and paying
the aggregate Exercise Price for the number of shares of Common Stock in respect
of which the Warrant is being exercised; provided, that the Exercise Price must
in any event be paid and the certificate representing the Warrant deposited with
the Company prior to the Close of Business on the fifth Business Day following
delivery of such notice. Upon each partial exercise of the Warrant, a new
Warrant evidencing the balance of the shares of Common Stock issuable hereunder
will be issued to the Holder, as soon as reasonably practicable, on the same
terms as the Warrant partially exercised.
Cashless Exercise. In lieu of any cash payment
required upon exercise of the Warrant, the Holder may elect to exercise this
Warrant in full or in part by surrendering this Warrant in the manner specified
in Section 2(b) hereof in exchange for the number of shares of Common Stock
equal to the product of (i) the number of shares of Common Stock as to which the
Warrant is being exercised multiplied by (ii) a fraction, (y) the numerator of
which is the Fair Market Value of a share of Common Stock on the date of
exercise less the Exercise Price, and (z) the denominator of which is the Fair
Market Value of a share of Common Stock on such date of exercise.
Payment of Taxes and Expenses. The Company shall pay all
expenses in connection with, and all taxes and other governmental charges that
may be imposed with respect to, the issuance or delivery of this Warrant and the
Warrant Stock, unless any such tax or charge is imposed by law upon the Holder,
in which case such tax or charge shall be paid by the Holder. The Company shall
not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issuance of any certificate for shares of
Common Stock in any name other than that of the Holder, and in such case the
Company shall not be required to issue or deliver any stock certificate until
such tax or other charge has been paid or it has been established to the
satisfaction of the Company that no such tax or other charge is due.
Fractional Shares. The Company shall not be required to issue
a fractional share of Common Stock upon exercise of the Warrant. As to any
fraction of a share which the Holder would otherwise be entitled to purchase
upon any exercise of the Warrant, the Company shall pay a cash adjustment in
respect of such fraction in any amount equal to the same fraction of the Fair
Market Value of the Common Stock on the date of exercise, less the portion of
the Exercise Price attributable to such fraction.
Transfer, Division and Combination.
Transfer. Subject to compliance with the provisions
of Section 10, transfers of this Warrant, in whole or in part, shall be recorded
on the Warrant Register upon surrender of the Warrant at the Office of the
Company, together with (i) a written assignment substantially in the form of
Exhibit B hereto, duly completed and signed by the Holder or by the duly
appointed legal representative or duly authorized attorney thereof and (ii)
funds sufficient to pay any applicable transfer taxes or evidence that any such
transfer taxes have been paid or that no such transfer taxes are due. Upon such
surrender and, if required, such payment, the Company shall, subject to
compliance with Section 10, execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination or denominations
specified in the instrument or assignment, and shall issue to the assignor a new
Warrant evidencing any portion of this Warrant not so assigned, and this Warrant
certificate shall promptly be canceled. A Warrant, if properly assigned in its
entirety in compliance with Section 10, may be exercised by the new Holder
without the issuance of a new Warrant certificate.
Division and Combination. Subject to compliance with
Section 10, this Warrant may be divided or combined with other Warrants upon
presentation thereof at the Office of the Company, together with a written
notice specifying the name or names and denomination or denominations in which a
new Warrant or new Warrants are to be issued, signed by the Holder or by the
duly appointed legal representative or duly authorized attorney thereof. Subject
to compliance with Section 10 as to any transfer which may be involved in such
division
or combination, the Company shall execute and deliver a new Warrant or Warrants
in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
Maintenance of Warrant Register. The Company agrees
to maintain the Warrant Register at all times prior to the Expiration Date at
the Office of the Company, and to cause the Warrant Register to be available for
inspection during normal working hours by any Holder or its representatives or
any prospective purchaser of a Warrant designated by a Holder or its
representatives.
Adjustments.
Adjustment. The number of shares of Common Stock for
which this Warrant is exercisable and the Exercise Price at which such shares
may be purchased shall be subject to adjustment from time to time as set forth
in this Section 6.
Stock Dividends, Subdivisions and Combinations. If at
any time the Company shall:
declare, order, pay or make a dividend on
Common Stock payable in Additional Shares of Common Stock;
subdivide its outstanding shares of Common
Stock into a larger number of shares of Common Stock; or
combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock;
then (A) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the happening of such event shall be adjusted to
equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock immediately prior to the happening of such
event would own or be entitled to receive after the happening of such event, and
(B) the Exercise Price shall be adjusted to equal (1) the Exercise Price in
effect immediately prior to such event multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to the
adjustment divided by (2) the number of shares for which this Warrant is
exercisable immediately after such adjustment.
Dividends and Distributions. If the Company shall
distribute to all holders of its outstanding shares of Common Stock evidence of
indebtedness of the Company, cash (including cash dividends payable out of
consolidated earnings or earned surplus) or assets or securities other than
Additional Shares of Common Stock, including stock of a subsidiary but excluding
dividends or distributions referred to in Section 6(b) above (any such evidences
of indebtedness, cash, assets or securities, the "assets or securities"), then,
in each case, the number of shares of Common Stock issuable after such record
date to Holder upon the exercise of each Warrant shall be determined by
multiplying the number of shares of Common Stock issuable upon the exercise of
such Warrant immediately prior to such record date by a fraction, the numerator
of which shall be the Fair Market Value per share of Common Stock immediately
prior to the record date for such distribution and the denominator of which
shall be the Fair Market Value per share of Common Stock immediately prior to
the record date for such distribution less the then fair value (as determined in
good faith by the Board) of the evidences of its indebtedness, cash or assets or
other distributions so distributed attributable to one share of Common Stock.
Such adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to the record date for
the determination of shareholders entitled to receive such distribution. Any
adjustment required by this Section 6(c) shall be made whenever any such
distribution is made, and shall become effective on the date of
such distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
Reorganization, Reclassification, Consolidation or
Merger. If the Company shall (i) effect any reorganization or reclassification
of its capital stock or (ii) consolidate or merge with or into, or transfer all
or substantially all of its properties and assets to, any other person, in
either case in a transaction in connection with which a Holder has not exercised
this Warrant, then, upon any exercise of this Warrant subsequent to the
consummation thereof, such Holder shall be entitled to receive, in lieu of the
Common Stock issuable upon exercise immediately prior to such consummation, the
highest amount of stock, other securities or property (including cash) to which
such Holder would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustments thereafter as provided in this Section 6.
Antidilution Adjustments.
Certain Definitions. As used in this subsection
6(e), the following terms shall have the following respective meanings:
"Base Price" means the Fair Market Value per
share of Common Stock, as determined from time to time as provided in this
Warrant.
"Options" means rights, options or warrants
to subscribe for, purchase or otherwise acquire either shares of Common Stock or
Convertible Securities.
"Convertible Securities" means any evidence
of indebtedness, shares of stock or other securities directly or indirectly
convertible into or exchangeable for Common Stock.
"Issue" or "Issued" means, with respect to
any security (including Options), the grant, issue or sale thereof, as the case
may be.
"Additional Shares of Common Stock" means,
for purposes of adjusting the Base Price pursuant to subsection (e)(iii) of this
Section 6, all shares of Common Stock issued (or, pursuant to subsection (e)(ii)
of this Section 6 deemed to be issued) by the Company after the Initial Date
(exclusive of shares issued upon exercise or conversion of any Options or
Convertible Securities granted or issued prior to the Initial Date) without
consideration or for a consideration (determined pursuant to subsection (e)(iv)
of this Section 6) per share less than the Base Price in effect on the date
immediately prior to such issue, other than Excluded Shares.
Issue of Securities Deemed to be Issue of
Additional Shares of Common Stock. In the case the Company at any time, or from
time to time after the Initial Date, shall Issue any Options or Convertible
Securities, or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares (as set forth in the instrument
relating thereto without regard to the provisions contained therein for a
subsequent adjustment of such number) of Common Stock issuable upon the exercise
of such Options, or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such Issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date; provided, however, that Additional Shares of Common Stock
shall not be deemed to have been Issued unless the consideration per share
(determined pursuant to subsection (e)(iv) of this Section 6) of such Additional
Shares of Common Stock is less than the Base Price in effect immediately prior
to such Issue, or such record date, as the case may be. In any case:
no further adjustment of the number of
Additional Shares of Common Stock shall be made upon the subsequent Issue of
Convertible Securities or shares of Common Stock upon the exercise of such
Options or the conversion or exchange of such Convertible Securities;
if Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to the Company, or any increase or
decrease in the number of shares of Common Stock issuable upon the exercise,
conversion or exchange thereof (by change of rate or otherwise), the number of
shares issuable upon exercise of this Warrant shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options, or the rights of conversion or exchange
under such Convertible Securities, which are outstanding at such time; and
upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the number of shares issuable upon exercise of
this Warrant computed upon the original issue thereof (or upon the occurrence of
a record date with respect thereto), and any subsequent adjustments based
thereon, shall, upon such expiration, be recomputed as if:
in the case of Convertible Securities or
Options for Common Stock, the only Additional Shares of Common Stock issued were
shares of Common Stock, if any, actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by the
Company for the issue of all such Options, whether or not exercised, plus the
consideration actually received by the Company upon such exercise, or for the
issue of all such Convertible Securities which were actually converted or
exchanged, plus the additional consideration, if any, actually received by the
Company upon such conversion or exchange, and
in the case of Options for Convertible
Securities, the only Convertible Securities issued were Convertible Securities,
if any, actually issued upon the exercise of such Options, and the consideration
received by the Company for the Additional Shares of Common Stock deemed to have
been issued was the consideration actually received by the Company for the issue
of all such Options, whether or not exercised, plus the consideration actually
received by the Company upon the issue of the Convertible Securities with
respect to which such Options were actually exercised.
Adjustments to Base Price. In the event the Company
shall issue Additional Shares of Common Stock (including Additional Shares of
Common Stock deemed to be issued pursuant to subsection (e)(ii) of this Section
6) without consideration or for a consideration per share less than the Base
Price in effect immediately prior to the issuance of such Additional Shares of
Common Stock, then and in each such case, the Base Price in effect on the date
of and immediately prior to such issuance shall be adjusted, concurrently with
such issue, to a price (calculated to the nearest cent) determined by
multiplying such Base Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issue
plus the number of shares of Common Stock which the aggregate consideration
received by the Company for the total number of Additional Shares of Common
Stock so issued would purchase at such Base Price, including for such purposes
the consideration paid and payable for Additional Shares of Common Stock deemed
issued pursuant to subsection (e)(ii) of the Section 6, in accordance with
subsection (e)(iv) of this Section 6, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issue
plus the number of such Additional Shares of Common Stock so issued and deemed
issued under subsection (e)(ii) of this Section 6. The Base Price, as adjusted
from time to time, shall be used to calculate in accordance with Section
6(e)(vi) below the additional number of shares of Common Stock the Holder is
entitled to purchase upon exercise of this Warrant.
Computation of Consideration. For purposes
of this subsection 6(e), the consideration received by the Company for the Issue
of any Additional Shares of Common Stock shall be computed as follows:
Nature of Consideration. Such consideration shall,
insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Company, excluding
amounts paid or payable for accrued interest or accrued dividends;
insofar as it consists of marketable
"securities", be computed at the fair market value thereof at the time of issue
as determined in the manner provided for the Common Stock in the definition of
"Fair Market Value;"
insofar as it consists of property other
than cash or marketable securities, be computed at the fair market value thereof
at the time of such Issue, as determined in good faith by the Company's Board of
Directors;
in the event Additional Shares of Common
Stock are issued together with other stock or securities or other assets of the
Company for consideration so received, computed as provided in clauses (1) and
(2) above, as determined in good faith by the Company's Board of Directors; and
in the event that the consideration
received by the Company for the issue of any additional shares of common stock
exceeds ten million dollars ($10,000,000) in any single transaction, then the
Board of Directors shall obtain a written opinion of an investment banking firm
that is nationally recognized in the United States to support the determination
of the Board of Directors under subsections 6(e)(iv)(3) and (4).
Options and Convertible Securities. The
consideration per share received by the Company for Additional Shares of Common
Stock deemed to have been Issued pursuant to subsection (e)(ii)(A) of this
Section 6, relating to Options and Convertible Securities, shall be determined
by dividing:
Options and Convertible Securities.
the amount, if any, received or
receivable by the Company as consideration for the Issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Company upon the exercise of such Options or the
conversion or exchange of such Convertible Securities or, in the case of Options
for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities, by
the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
Splits, Subdivisions or Combinations of
Shares and Stock Dividends. If the Company at any time while this Warrant
remains outstanding and unexpired shall split, subdivide, combine its
Common Stock or declare a stock dividend, the Base Price shall be
proportionately decreased in the case of a split or subdivision or share
dividend, or proportionately increased in the case of a combination. Any
adjustment under this subsection shall become effective when the split,
subdivision or combination becomes effective and notwithstanding this subsection
6(e)(v), in no event shall the purchase price for the Warrant Stock exceed $3.50
per share for 125,000 Shares of Common Stock and $4.00 for the other 125,000
Shares of Common Stock..
Number of Additional Shares Issuable Upon
Exercise of this Warrant. Upon such adjustment of the Base Price resulting from
the provisions of subsection (e)(iii) of this Section 6, the number of shares of
Common Stock issuable upon exercise of this Warrant shall be increased by an
amount determined by multiplying the number of shares of Common Stock which the
Holder was entitled to purchase pursuant to this Warrant immediately prior to
such adjustment (all as adjusted for stock splits subdivisions, combinations and
stock dividends) by a fraction, (i) the numerator of which shall be the Base
Price in effect immediately prior to such adjustment of the Base Price, and (ii)
the denominator of which shall be the newly adjusted Base Price calculated
pursuant to subsection (e)(iii) of Section 6.
Notices.
Notice of Adjustment. Whenever the number of shares
of Common Stock for which this Warrant is exercisable shall be adjusted pursuant
to Section 6, the Company shall forthwith prepare a certificate to be executed
by the chief financial officer of the Company setting forth, in reasonable
detail, the event requiring the adjustment, the method by which the adjustment
was calculated and describing the number of shares of Common Stock for which
this Warrant is exercisable after giving effect to such adjustment or change.
The Company shall promptly cause a signed copy of such certificate to be
delivered to each Holder. The Company shall keep at the Office of the Company
copies of all such certificates and cause the same to be available for
inspection during normal business hours by any Holder or any prospective
purchaser or a Warrant designated by a Holder.
Notice of Extraordinary Distributions. In the event
that the Company proposes to set a record date for the purpose of entitling
holders of its Common Stock to receive any dividend or other distribution (other
than dividends or distributions listed on Schedule A hereto) of:
cash in an amount in excess of the previous
regular cash dividend; or
any evidences of its indebtedness, any
shares of its stock or any other securities or property of any nature
whatsoever, including any warrants or other rights to subscribe for or purchase
any evidences of its indebtedness, any shares or its stock of any other
securities or property;
then the Company shall deliver to each Holder written notice of such proposed
dividend or distribution at least 30 days prior to such proposed record date. A
reclassification of Common Stock (other than a change in par value, or from par
value to no par value or from no par value to par value) into shares of Common
Stock and shares of any other class of stock shall be deemed a distribution by
the Company to the holders of its Common Stock of such shares of such other
class of stock within the meaning of this Section 7(b) and, if the outstanding
shares of Common Stock shall be changed into a larger or smaller number of
shares of Common Stock as a part of such reclassification, shall be deemed a
subdivision or combination, as the case may be, of the outstanding shares of
Common Stock within the meaning of Section 6(b).
Notice of Certain Mergers and Asset Dispositions. In
the event that the Company proposes to consolidate with or merge into another
corporation in a transaction in which the Common Stock will be changed or
converted into other securities, cash or property, or to sell, transfer or
otherwise dispose of all or substantially all of its property, assets or
business to another corporation or other entity, the Company shall deliver to
each Holder
written notice of such proposed transaction at least 15 days prior to the
earlier of its consummation or the taking of any record of the holders of its
Common Stock for the purpose of determining their rights pursuant to such
transactions.
Notice of Registration Statement. In the event that
the Company shall propose to file a registration statement under the Securities
Act after the Initial Date with respect to any shares of Common Stock of the
Company, it shall deliver to each Holder (i) at least 15 days' advance notice of
its intention to file such registration statement and the anticipated range of
prices at which the shares of Common Stock are proposed to be offered; (ii)
prompt notice of any change in such anticipated range of prices; and (iii)
notice by 10:00 a.m., New York City time, on the day prior to the date on which
the registration statement is expected to become effective.
Financial Statements of the Company. The Company
shall promptly deliver to the Holders any annual, quarterly or other financial
statements that are provided to any holders of equity or debt (other than bank
debt) securities of the Company in their capacity as holders of such securities.
Put Right. If the Company has not consummated an Offering
prior to three (3) years from July 17, 1998, this Warrant shall, for a period of
two (2) years thereafter (the "Put Period"), be immediately entitled to the
rights in this Section 8. The Company hereby grants to the Holder the option
(the "Put Option"), at any time during Put Period, to require the Company to
purchase this Warrant, in whole but not in part, at a price (the "Put Price")
equal to the Fair Market Value of the shares of Common Stock which would be
issued if this Warrant were exercised as of the date the Put Option is exercised
minus the Exercise Price for such shares. Further, solely for purposes of this
Section 8, if the Fair Market Value of shares of Common Stock are determined in
accordance with subparagraph (iii) under the definition of "Fair Market Value"
in Section 1 hereof, such determination shall reflect the value of the Common
Stock as if the Common Stock were fully distributable and freely tradeable in a
liquid public market as well as external market conditions. The Put Option shall
be exercised by the Holder by giving written notice to the Company in the form
attached hereto as Exhibit C. Payment of the Put Price, against delivery of this
Warrant duly endorsed by the Holder, shall be by means of a cash payment and
shall take place not later than 120 days after the date such notice is given by
the Holder, or if the Put Price shall not have been determined by such 120th
day, within 10 days after such determination.
Reservation and Authorization of Common Stock.
The Company shall at all times reserve and keep
available for issuance upon the exercise of the Warrant the maximum number of
its authorized but unissued shares of Common Stock as could then potentially be
required to permit the exercise in full of all outstanding Warrants. All shares
of Common Stock issuable upon exercise of any Warrant and payment therefor in
accordance with the terms of such Warrant shall be duly and validly issued and
fully paid and nonassessable, and not subject to preemptive rights.
Before taking any action which would cause an
adjustment reducing the Exercise Price below the then par value, if any, of the
shares of Common Stock issuable upon exercise of the Warrants, the Company shall
take any corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Exercise Price.
Legends.
Warrant Restrictive Legend. Except as otherwise
provided in this Section 10, each Warrant shall be stamped or otherwise
imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE ISSUER HAS RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER OF THIS WARRANT IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER, THAT SUCH OFFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT AND SUCH LAWS. THE SHARES ISSUABLE
UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO CERTAIN RIGHTS
AND OBLIGATIONS AS SET FORTH IN A REGISTRATION RIGHTS
AGREEMENT, DATED AS OF NOVEMBER 14, 1997, A COPY OF WHICH IS
ON FILE AT THE OFFICE OF THE COMPANY.
Warrant Stock Restrictive Legend. Except as otherwise
provided in this Section 10, each certificate for Warrant Stock initially issued
upon the exercise of this Warrant, and each certificate for Warrant Stock issued
to any subsequent transferee of any such certificate, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT"), AND MAY
NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR UNLESS THE ISSUER HAS RECEIVED AN OPINION OF COUNSEL TO THE HOLDER OF
THESE SHARES IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, THAT SUCH OFFER,
SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION IS EXEMPT
FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS. THE
SHARES ARE SUBJECT TO THE CONDITIONS SPECIFIED IN A CERTAIN WARRANT, DATED
NOVEMBER 14, 1997. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF SUCH WARRANT. THE SHARES
ARE SUBJECT TO CERTAIN RIGHTS AND OBLIGATIONS AS SET FORTH IN A REGISTRATION
RIGHTS AGREEMENT, DATED AS OF NOVEMBER 14, 1997, A COPY OF WHICH IS ON FILE AT
THE OFFICE OF THE COMPANY.
Termination of Restrictions. The legend requirements
of Sections 10(a) and 10(b) shall terminate when (i) the Registration Rights
Agreement has terminated and is no longer of any force and effect and (ii)
either (y) the security in question shall have been effectively registered under
the Securities Act and disposed of pursuant thereto or (z) the Company shall
have received an opinion of counsel reasonably satisfactory to it that such
legend is not required in order to insure compliance with the Securities Act.
Loss or Mutilation. Upon receipt by the Company from any
Holder of evidence reasonably satisfactory to it of the ownership of and the
loss, theft, destruction or mutilation of this Warrant and an indemnity
reasonably satisfactory to it (and in case of mutilation upon surrender and
cancellation hereof), the Company will execute and deliver in lieu thereof a new
Warrant of like tenor to such Holder; provided, in the case of mutilation, no
indemnity shall be required if this Warrant in identifiable form is surrendered
to the Company for cancellation.
Office of the Company. As long as any of the Warrants remain
outstanding, the Company shall maintain an office or agency (which may be the
principal executive offices of the Company) where the Warrants may be presented
for exercise, registration of transfer, division or combination as provided in
this Warrant, and where the Warrant Register shall be maintained.
No Rights or Liabilities as Stockholder. Nothing contained in
this Warrant shall be construed as conferring upon any Holder any rights as a
stockholder of the Company or as imposing any liabilities on such Holder to
purchase any securities or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
Notice. All notices, requests, demands, letters, waivers and
other communications required or permitted to be given here under shall be in
writing and shall be deemed to have been duly given if (a) delivered personally,
(b) mailed, certified or registered mail with postage prepaid, (c) sent by
next-day or overnight mail or delivery or (d) sent by telecopy or telegram, as
follows:
(i) If to the Initial Holder:
Credit Suisse First Boston
Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, Director
(ii) If to any other Holder, at its last known address
appearing on the Warrant Register
(iii) If to the Company:
Equivest Finance, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
General Counsel
All such notices, requests, demands, letters, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, x) if by certified or registered mail, on the fifth
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered or (z) if by telecopy or telegram, on the next
day following the day on which such telecopy or telegram was sent, provided that
a copy is also sent by certified or registered mail.
Successors and Assigns. This Warrant and the rights evidenced
hereby shall be binding upon and shall inure to the benefit of the successors of
the Company and the successors and assigns of the Holder. In addition, and
provided that an express assignment shall have been made, a copy of which shall
have been delivered to the Company, the provisions of this Warrant shall be for
the benefit of and enforceable by all Holders from time to time of this Warrant
and shall be enforceable by any Holder.
Amendment. This Warrant may be amended, modified or
supplemented or the provisions hereof waived only with the written consent of
the Company and the Holder.
Headings. The headings and captions contained in this Warrant
are for convenience of reference only and shall not control or affect the
meaning or construction of any provision hereof.
GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and attested by its Secretary.
Dated: November 14, 1997
ATTEST: EQUIVEST FINANCE, INC.
By: By:
------------------------ ----------------------------
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary Title: Chairman and CEO
EXHIBIT A
NOTICE OF EXERCISE
[To be executed only upon exercise of the Warrant]
The undersigned registered owner of Warrant No. __ dated , to purchase
Common Stock of Equivest Finance, Inc. (the "Company"), irrevocably exercises
such Warrant for the purchase of ____ shares of Common Stock of the Company, and
hereby undertakes to make payment therefor and to deposit with the Company the
certificate representing such Warrant, in each case as set forth in Section 2(b)
thereof and at the price and on the other terms and conditions specified
therein. The undersigned requests that certificates for the shares of Common
Stock to be purchased pursuant hereto be issued in the name of and delivered to
__________ whose address is ___________________________________________________
and, if such shares of Common Stock shall not include all of the shares of
Common Stock issuable as provided in such Warrant, that a new Warrant of like
tenor and date for the balance of the shares of Common Stock issuable thereunder
be delivered to the undersigned.
If the Company's Common Stock is listed on a securities exchange or
interdealer quotation system, the undersigned [select one: (does) (does not)]
choose to pay the Exercise Price pursuant to a cashless exercise of the Warrant
pursuant to Section 2(c) of the Warrant.
--------------------------------------------------------------------------------
(Name of Registered Owner)
--------------------------------------------------------------------------------
(Signature of Registered Owner)
--------------------------------------------------------------------------------
(Street Address)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this notice of exercise must correspond with the name
as written upon the face of the Warrant in every particular, without alteration
or enlargement of any change whatsoever.
EXHIBIT B
ASSIGNMENT
[To be executed only upon transfer of the Warrant, in whole or in part,
in accordance with its terms]
FOR VALUE RECEIVED, the undersigned registered owner ("Assignor") of Warrant No.
__ to purchase Common Stock of Equivest Finance, Inc. (the "Company") hereby
sells, assigns and transfers unto
("Assignee")
(Name)
(Street Address)
(City, State, Zip Code)
the right to purchase __________ shares of Common Stock of the Company,
evidenced by such Warrant, together with all right, title and interest therein,
and does irrevocably constitute and appoint _____________________________
attorney to transfer the said right on the books of said corporation with full
power of substitution in the premises. If such right to purchase shares of
Common Stock of the Company shall not include all of the shares of Common Stock
issuable as provided in such Warrant, the undersigned requests that a new
Warrant of like tenor and date for the balance of the shares of Common Stock
issuable thereunder be delivered to the undersigned. All capitalized terms used
but not defined in this Assignment shall have the meanings given to them in the
Warrant.
Date: Assignor:
----------------------- ---------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
The undersigned Assignee hereby accepts the sale, assignment and
transfer of the Warrant as set forth in this Assignment and acknowledges and
agrees that the Assignee's rights in and to such Warrant are subject to the
terms set forth in the Warrant and the Registration Rights Agreement.
Date: Assignee:
----------------------- ---------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
NOTICE: The signature of the Assignor on this Assignment must correspond with
the name as written upon the face of the Warrant in every particular, without
alteration or enlargement of any change whatsoever.
EXHIBIT C
NOTICE OF EXERCISE OF PUT OPTION
[To be executed only upon exercise of the Put Option set forth in the Warrant]
The undersigned registered owner of the attached Warrant No. __ to
purchase Common Stock of Equivest Finance, Inc. irrevocably exercises such
owner's Put Option pursuant to Section 8 of such Warrant, subject to the terms
of such Put Option set forth in the Warrant. All capitalized terms used but not
defined in this Assignment shall have the meanings given to them in the Warrant.
Date:
-------------------
--------------------------------------------------------------------------------
(Name of Registered Owner)
--------------------------------------------------------------------------------
(Signature of Registered Owner)
--------------------------------------------------------------------------------
(Street Address)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this notice of exercise must correspond with the name
as written upon the face of the Warrant in every particular, without alteration
or enlargement of any change whatsoever.
Schedule A to AMENDED AND RESTATED WARRANT
SCHEDULE OF EXCLUDED STOCK ISSUANCES
1. Common Stock issued in exchange of Series 2 Class A Preferred Stock
held by the Consolidated ▇▇▇▇▇▇▇ Bankruptcy Estates as outlined in the
Notice of Evidentiary Hearing on Trustee's Motion under 11 USC
ss.363(b) to sell Common Stock in Equivest as long as such Common Stock
is issued for Fair Market Value dated July 10, 1998 ("Bankruptcy
Motion").
2. Common Stock issued as a dividend on the Series 2 Class A Preferred
Stock as specified in the Designation of Rights and Preferences for
such Preferred Stock.
3. Common Stock, or rights to acquire common stock of Equivest to be
issued pursuant to Equivest's existing employee benefit plans,
including its Employee Stock Option Plan, and its existing employment
contracts.
4. Common Stock to be issued by Equivest to acquire Eastern Resorts
Corporation as specified in the Agreement and Plan of Merger dated July
17, 1998 by and among Equivest Finance, Inc. ERC Acquisition Corp., and
Eastern Resorts ("Merger Agreement").
5. In the event Equivest enters into an employment contract (approved
by the Board of Equivest) to retain the services of a Chief Executive
Officer, any Common Stock, or rights to acquire Common Stock issuable
pursuant thereto, except for any grants of rights to acquire Common
Stock at less than the market price of the Common Stock on the date of
the grant of such right.
6. The issuance of the Consolidated ▇▇▇▇▇▇▇ Bankruptcy Estate of shares
of Common Stock to resolve claims involving payments related to
Socfo-▇▇▇▇ as described in Schedule 2.9(a) to the Merger Agreement.
8. The proposed 1998 offering of Common Stock by Equivest described in
the Bankruptcy Motion.