Exhibit 10.105
NEITHER THIS WARRANT NOR THE COMMON UNITS ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE LAWS AND NEITHER THIS WARRANT NOR COMMON UNITS ISSUABLE UPON EXERCISE OF
THIS WARRANT MAY BE TRANSFERRED EXCEPT AS PROVIDED IN SECTION 2 OF THIS WARRANT.
WARRANT
to Purchase Common Units of
▇▇▇▇-▇▇▇▇ REALTY, L.P.
Expiring ________, 2002
This Warrant certifies that [The ▇▇▇▇ Companies], or registered and
permitted assigns (the "Holder"), is entitled to, subject to the terms set
forth below, subscribe for and purchase from ▇▇▇▇-▇▇▇▇ Realty, L.P., a
Delaware limited partnership (the "Company"), two million (2,000,000) duly
authorized, validly issued, fully paid and nonassessable common operating
partnership units of the Company (the common units, including any security
into which they may be changed, reclassified, or converted, and as it may be
adjusted pursuant to Section 4(A) below, are herein referred to as the
"Common Units"). This Warrant is one of a class of Warrants (the "▇▇▇▇
Warrants") issued pursuant to Section 2.5 of the Contribution and Exchange
Agreement (the "Agreement"), dated __________, 1997, by and among the
Company, Cali Realty, L.P., a Delaware limited partnership, the ▇▇▇▇
Contributors (as defined therein) and the ▇▇▇▇ Entities (as defined therein).
This Warrant is subject to the following provisions, terms and conditions:
Section 1. Exercise of Warrant.
To exercise this Warrant in whole or in part, the Holder shall deliver to
the Company at its principal office in Cranford, New Jersey, (a) a written
notice, in substantially the form of the Exercise Notice appearing at the end
of this Warrant (the "Exercise Notice"), of the Holder's election to exercise
this Warrant, which notice shall specify the number of Common Units to be
purchased, (b) cash or a certified check payable to the Company in an amount
equal to the aggregate purchase price of the number of Common Units being
purchased, and (c) this Warrant. The Company shall as promptly as
practicable, and in any event within 15 days thereafter, execute and deliver
or cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of Common Units
specified in the Exercise Notice. The certificate or certificates so
delivered shall be in such denominations as may be specified in the Exercise
Notice and shall be issued in the name of the Holder or such other name as
shall be designated in such notice. Such certificate or certificates shall be
deemed to have been issued and the Holder or any other person so designated
to be named therein shall be deemed for all purposes to have become a holder
of record of such Common Units immediately prior to the close of business on
the date such notice is received by the Company as aforesaid. If this
Warrant shall have been exercised only in part, the Company shall, at the
time of delivery of said certificate or certificates, deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the remaining
units of Common Units called for by this Warrant,
which new Warrant shall in all other respects be identical to this Warrant,
or, at the request of the Holder, appropriate notation may be made on this
Warrant and the same returned to the Holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issue and delivery of such certificates and new Warrants, except that, in
case such certificates or new Warrants shall be registered in a name or names
other than the name of the Holder, funds sufficient to pay all transfer taxes
that are payable upon the issuance of such certificates or new Warrants shall
be paid by the Holder at the time of delivering the notice of exercise
mentioned above.
All Common Units issued upon the exercise of this Warrant shall be
validly issued, fully paid and nonassessable and, if the Common Units are
then listed on a national securities exchange or quoted on an automated
quotation system, shall be duly listed or quoted thereon.
The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of a unit of Common Units, but,
in lieu thereof, shall pay to the Holder cash in an amount equal to a
corresponding fraction (calculated to the nearest 1/100 of a unit) of the
purchase price of one Common Unit as of the date of receipt by the Company of
notice of exercise of this Warrant.
Section 2. Terms and Conditions of Warrants.
(A) Exercise Period. Each Warrant shall be exercisable at any time on
or after the first anniversary of the date hereof (the "Exercise Date"), and
shall expire at 5:00 p.m., New York City time, on the fourth anniversary of
the Exercise Date (the "Expiration Date").
(B) Purchase Price. The purchase price per unit of Common Units shall
be $37.80.
(C) Payment of Purchase Price upon Exercise. Subject to the provisions
of Section 5, the purchase price of the Common Units as to which a Warrant is
exercised shall be paid to the Company at the time of exercise.
(D) Transferability and Exercise of Warrants. This Warrant shall be
exercisable or convertible (a) only under circumstances such that the issue
of Common Units issuable upon such exercise or conversion is exempt from the
requirements of registration under the Securities Act of 1933, as amended
(the "1933 Act"), and any applicable state securities law or (b) upon
registration of such Common Units in compliance therewith; provided, however,
that the foregoing shall not apply if this Warrant is exercised by the
original Holder thereof. This Warrant shall only be transferable (i) in
accordance with or as otherwise specifically permitted by the provisions of
the Agreement and (ii) under circumstances such that the transfer is exempt
from the requirements of registration under the 1933 Act and any applicable
state securities law. By acceptance hereof, the Holder agrees to comply with
such laws.
(E) Investment Representation. The Holder, by acceptance hereof, (i)
hereby represents that he or she is an "Accredited Investor" under Rule
501(a) of Regulation D promulgated under Section 4(2) of the 1933 Act, and
(ii) acknowledges that this Warrant is, and to the extent not registered
under the 1933 Act, any Common Units purchased or acquired pursuant hereto
are, being or will be acquired solely for the Holder's own account and not as
a nominee for any other
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party, and with a current investment intent and not with a view to
distribution thereof. Subject to the provisions of Section 10, the Holder
(or any person acting under Sections 2(D) above) shall deliver to the
Company, at the time of any exercise of this Warrant or portion thereof, a
written representation that the Common Units to be acquired upon such
exercise are to be acquired for investment and not for resale or with a view
to the distribution thereof, and, if applicable, that he or she is the
original Holder of this Warrant. Delivery of such representation prior to
the delivery of any Common Units issued upon exercise of a Warrant and prior
to the expiration of the Warrant period shall be a condition precedent to the
right of the Holder or such other person to purchase any Common Units. In
the event certificates for Common Units are delivered upon the exercise of
this Warrant with respect to which such an investment representation has been
obtained, the Company may cause a legend or legends to be placed on such
certificates to make appropriate reference to such representations and to
restrict transfer in the absence of compliance with applicable federal or
state securities laws.
Section 3. Transfer, Division and Combination.
The Company agrees to maintain at its principal office in Cranford, New
Jersey, books for the registration and transfer of this Warrant, and, subject
to the provisions of Section 2(D) hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, on such books at such
office, upon surrender of this Warrant at such office, together with a
written assignment of this Warrant duly executed by the Holder or his agent
or attorney and funds sufficient to pay any transfer taxes payable upon the
making of such transfer. Upon such surrender and payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denominations specified in such instrument of
assignment, and this Warrant shall promptly be canceled. A Warrant may be
exercised by a new holder for the purchase of Common Units without having a
new Warrant issued. All of the provisions of this Section 3 are subject to
the provisions of Sections 2(D) above.
Section 4. General Provisions
(A) Certain Adjustments. In the event of any change in Common Units by
reason of any dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of units, or of any similar
change affecting the Common Units, the number and kind of units subject to
this Warrant and the purchase price per unit thereof shall be appropriately
adjusted consistent with such change to prevent dilution or enlargement of
the rights granted to, or available for, the Holder hereunder. Any
adjustment of this Warrant pursuant to this Section 4(A) shall be made only
to the extent not constituting a "modification" within the meaning of Section
424(h)(3) of the Internal Revenue Code of 1986, as amended from time to time,
unless the Holder shall agree otherwise. The Company shall give notice to
the Holder of any adjustment made pursuant to this Section 4(A) and, upon
notice, such adjustment shall be effective and binding for all purposes under
this Warrant.
(B) Successor Company. The obligations of the Company under this
Warrant shall be binding upon any successor Company or organization resulting
from the merger, consolidation or other reorganization of the Company, or
upon any successor Company or organization succeeding to substantially all of
the assets and business of the Company. The Company agrees that it will make
appropriate provision for the preservation of Holder's rights under this
Warrant
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in any agreement or plan which it may enter into or adopt to effect any such
merger, consolidation, reorganization or transfer of assets.
(C) Listing and Qualification of Stock Underlying Common Units. The
Company covenants to effect the listing of the Common Stock underlying the
Common Units underlying this Warrant on the New York Stock Exchange prior to
the Exercise Date.
(D) General Creditor Status. The Holder shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to
aid it in meeting its obligations hereunder. Nothing contained herein, and
no action taken pursuant hereto, shall create or be construed to create a
trust of any kind, or a fiduciary relationship between the Company and the
Holder or any other person. To the extent that any person or entity acquires
a right to receive payments from the Company hereunder, such right shall be
no greater than the right of an unsecured general creditor of the Company.
All payments to be made hereunder shall be paid from the general funds of the
Company and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts except
as expressly set forth herein; provided, however, that in its sole
discretion, the Company may authorize the creation of trusts or other
arrangements to meet the obligations created hereunder to deliver Common
Units or pay cash.
Section 5. Right to Convert Warrant.
The Holder shall have the right to convert, in whole or in part, this
Warrant (the "Conversion Right") at any time prior to the Expiration Date,
into Common Units in accordance with this Section 5. Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of the purchase price) that number of Common Units equal to the
quotient obtained by dividing (x) the value of the portion of this Warrant
being converted at the time the Conversion Right is exercised (determined by
subtracting the aggregate purchase price for the portion of this Warrant
being converted (in effect immediately prior to the exercise of the
Conversion Right) from the amount obtained by multiplying the number of
Common Units issuable upon the whole or partial exercise of this Warrant, as
the case may be, by the Closing Price (as defined below) of one Common Unit
on the day immediately prior to the exercise of the Conversion Right) by (y)
the Closing Price of one Common Unit on the day immediately prior to the
exercise of the Conversion Right.
For purposes hereof, the "Closing Price" shall mean the closing sale
price (or the average of the closing bid and ask prices if there is no
closing sale price reported) of the Common Stock on the date specified on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, or, if the Common Stock is not listed or admitted to
trading on any national securities exchange on such date, the average of the
highest reported bid and lowest reported asked prices as furnished by the
National Association of Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting such information. If there is
no reported bid and asked price for the Common Stock, the "Closing Price"
shall be the fair value as determined in good faith by the Board of Directors
of the Company and the Holder, or, if the Board of Directors of the Company
and the Holder cannot agree, then by an independent appraiser mutually
selected by the Board of Directors of the Company and the Holder.
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The Conversion Right may be exercised by the Holder, at any time or from
time to time, prior to its expiration, on any business day by delivering the
Conversion Notice to the Company at the offices of the Company, exercising
the Conversion Right and specifying (i) the total number of Common Units that
the Holder will purchase pursuant to the conversion and (ii) a place and date
not less than two nor more than 20 business days from the date of the
Conversion Notice for the closing of such purchase.
At any closing under this Section 5, (i) the Holder will surrender this
Warrant and (ii) the Company will deliver to the Holder a certificate or
certificates for the number of Common Units issuable upon such conversion.
If this Warrant shall have been converted only in part, the Company shall, at
the time of delivery of said certificate or certificates, deliver to the
Holder a new Warrant evidencing the rights of the Holder to purchase the
remaining Common Units called for by this Warrant, which new Warrant shall in
all other respects be identical to this Warrant, or, at the request of the
Holder, appropriate notation may be made on this Warrant and the same
returned to the Holder. The Company shall pay all expenses, taxes and other
charges payable in connection with the preparation, issue and delivery of
such certificates and new Warrants, except that, in case such certificates
and/ or new Warrants shall be registered in a name or names other than the
name of the Holder, funds sufficient to pay all transfer taxes that are
payable upon the issuance of such certificates or new Warrants shall be paid
by the Holder at the time of delivering the notice of exercise mentioned
above.
Section 6. Covenant to Reserve Common Units and Common Stock.
The Company covenants and agrees that (i) it will at all times reserve
and set apart and have, free from preemptive rights, a number of units of
authorized but unissued Common Units sufficient to enable it at any time to
fulfill all its obligations hereunder and (ii) and will cause ▇▇▇▇-▇▇▇▇
Realty Corporation, a Maryland corporation ("MC Corp.") to reserve and
set-apart and have, free from preemptive rights, a number of its authorized
but unissued shares of common stock, par value $.01 per share ("Common
Stock"), sufficient to enable it at any time to fulfill all of its
obligations upon conversion of the Common Units underlying this Warrant into
Common Stock.
Section 7. Notices.
In the event that the Company or MC Corp. (as the case may be):
(a) proposes to pay any distribution or dividend payable in
securities (of any class or classes) or any obligations, stock or units
convertible into or exchangeable for Common Units or Common Stock upon
either of their capital securities, including without limitation (i) Common
Units or Common Stock or (ii) a cash distribution other than its customary
quarterly cash distribution;
(b) proposes to grant to the holders of its Common Units or Common
Stock generally any rights or warrants (excluding any warrants or other
rights granted to any employee, director, officer, contractor or consultant
of the Company or MC Corp. pursuant to any plan approved by the general
partner of the Company or the Board of
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Directors of MC Corp.);
(c) proposes to effect any capital reorganization or reclassification
of capital securities of the Company or MC Corp.;
(d) proposes to consolidate with, or merge into, any other company or
to transfer its property as an entirety or substantially as an entirety; or
(e) proposes to effect the liquidation, dissolution or winding up of
the Company or MC Corp.
then the Company shall cause notice of any such intended action to be given
to the holder of this Warrant not less than 30 days before the date on which
the transfer books of the Company shall close or a record shall be taken for
such dividend, distribution or granting of rights or Warrants, or the date
when such capital reorganization, reclassification, consolidation, merger,
transfer, liquidation, dissolution or winding up shall be effective, as the
case may be.
Any notice or other document required or permitted to be given or
delivered to the holder of this Warrant shall be delivered by facsimile
transmission, reliable courier or first-class mail postage prepaid to the
holder of this Warrant at the last address shown on the books of the Company
maintained for the registry and transfer of this Warrant. Any notice or
other document required or permitted to be given or delivered to holders of
record of Common Units issued pursuant to this Warrant shall be delivered by
facsimile, reliable courier or first-class mail postage prepaid to such
holder at such holder's address as the same appears on the records of the
Company. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered by facsimile transmission,
reliable courier or first-class mail postage prepaid to the principal office
of the Company in Cranford, New Jersey, or delivered to the office of one of
the Company's executive officers at such address, or such other address as
shall have been furnished by the Company to the holders of record of this
Warrant and the holders of record of such Common Units.
Section 8. Limitation of Liability; Not holders of Common Units.
No provision of this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive dividends or to receive
notice as a Common Unit holder in respect of meetings of Common Unit holders
or any other matter whatsoever as Common Unit holders of the Company. No
provision hereof, in the absence of affirmative action by the Holder to
purchase Common Units, and no mere enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of Holder for the
purchase price or as a Common Unit holder of the Company, whether such
liability is asserted by the Company, creditors of the Company or others.
Section 9. Loss, Destruction, etc, of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of this Warrant, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the
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Company, or in the event of such mutilation upon surrender and cancellation
of this Warrant, the Company will make and deliver a new Warrant, of like
tenor, in lieu of such lost, stolen, destroyed or mutilated Warrant. Any
Warrant issued under the provisions of this Section 9 in lieu of any Warrant
alleged to be lost, destroyed or stolen, or of any mutilated Warrant, shall
constitute an original contractual obligation on the part of the Company.
Section 10. Exercise for Common Stock.
In the event the Holder elects to exercise this Warrant with the
intention of immediately thereafter redeeming all or part of the Common Units
received from the exercise of this Warrant into Common Stock or the cash
value equivalent thereof as more fully set forth in Section 10.3 of the
Partnership Agreement of the Company, and delivers a notice to the Company
along with the delivery of the Exercise Notice stating such Holder's intent
(the "Notice of Redemption"), the exercise of this Warrant and the delivery
of the Notice of Redemption shall be deemed to have occurred on the same
business day, and the Company shall cause MC Corp. to complete the redemption
process as expeditiously as reasonably practicable.
Section 11. Registration Rights.
As used in this Section 11, the term "Registrable Securities" shall
mean all Common Units that may be issued upon exercise of this Warrant (and
all Common Units or Common Stock that may thereafter be issued in respect of
such Warrant) that is from time to time outstanding.
References in this Warrant to rules, regulations and forms
promulgated by the Securities and Exchange Commission shall include rules,
regulations and forms succeeding to the functions thereof, whether or not
bearing the same designation.
The rights and obligations of the Company and the Holder with
respect to the Registrable Securities are set forth in a Registration Rights
Agreement, dated the date hereof, between the Company, the Holder and the
other signatories thereto, and shall supersede any registration rights and
obligations of the Company and the Holder existing prior to the date hereof
with respect to the Registrable Securities.
Section 12. Amendments.
Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, provided that any term of this
Warrant may be amended or the observance of such term may be waived (either
generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Company and
the holders of the ▇▇▇▇ Warrants that are exercisable for a number of units
of Common Units that represent in the aggregate at least a majority of the
total number of Common Units for which all of the ▇▇▇▇ Warrants are then
exercisable (whether or not the holder of this Warrant consents).
Section 13. Governing Law and Consent to Jurisdiction.
This Warrant shall be governed by the laws of the State of New York
without regard to
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its conflict of laws principles or rules. This Warrant shall be deemed to
have been executed and delivered at and shall be deemed to have been made in
New York, New York.
Any legal action, suit or proceeding arising out of or relating to this
Warrant may only be instituted in any federal court of the Southern District
of New York or any state court located in New York County, State of New York,
and the Company agrees not to assert, by way of motion, as a defense or
otherwise, in any action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of such courts, that the action, suit
or proceeding if brought in such courts, would be an inconvenient forum, that
the venue of the action, suit or proceeding, if brought in any of such
courts, is improper or that this Agreement or the subject matter may not be
enforced in or by such courts on jurisdictional grounds.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its duly authorized officer.
Dated: ________, 1997
▇▇▇▇-▇▇▇▇ REALTY, L.P.
By: ▇▇▇▇-▇▇▇▇ REALTY CORPORATION,
its general partner
By:___________________________
Name:
Title:
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EXERCISE NOTICE
The undersigned, the Holder, hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, ____________
units of the Common Units covered by such Warrant and herewith makes payment
in full therefor of $_________ cash and requests that, subject to the terms
and conditions of the Warrant, certificates for such units (and any
securities or property deliverable upon such exercise) be issued in the name
of and delivered to ______________________ whose address is
_______________________________________, and whose social security or
employer identification number is ____________.
The undersigned agrees that, in the absence of an effective registration
statement with respect to Common Units issued upon this exercise, the
undersigned is acquiring such Common Units for the Holder's own account and
not as a nominee for any other party, for investment and not with a view to
distribution thereof and that the certificate or certificates representing
such Common Units may bear a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. UNLESS THEY ARE SOLD
PURSUANT TO RULE 144 PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION
UNDER SAID ACT, THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO COUNSEL FOR THE
OPERATING PARTNERSHIP, THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
In addition, the undersigned agrees that, in the absence of an effective
registration statement with respect to Common Units issued upon this
exercise, stop transfer instructions will be entered on the Company's
transfer records with respect to Common Units issued upon this exercise.
Dated: --------------------------
Signature guaranteed:
10
CONVERSION NOTICE
The undersigned, the Holder, hereby elects to exercise conversion rights
represented by such Warrant for, and to purchase thereunder, ____________
units of the Common Units covered by such Warrant and herewith requests that
appropriate conversion be made to such Warrant and requests that, subject to
the terms and conditions of the Warrant, certificates for such units (and any
securities or property deliverable upon such exercise) be issued in the name
of and delivered to ______________________ whose address is
_______________________________________, and whose social security or
employer identification number is ____________ on or before _____________.
The undersigned agrees that, in the absence of an effective registration
statement with respect to Common Units issued upon this conversion, the
undersigned is acquiring such Common Units for the Holder's own account and
not as a nominee for any other party, for investment and not with a view to
distribution thereof and that the certificate or certificates representing
such Common Units may bear a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. UNLESS THEY ARE SOLD
PURSUANT TO RULE 144 PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION
UNDER SAID ACT, THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO COUNSEL FOR THE
OPERATING PARTNERSHIP, THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
In addition, the undersigned agrees that, in the absence of an effective
registration statement with respect to Common Units issued upon this
exercise, stop transfer instructions will be entered on the Company's
transfer records with respect to Common Units issued upon this exercise.
Dated: --------------------------
Signature guaranteed:
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