EXHIBIT 10.4
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 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 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 OTHERWISE DISPOSED OF UNLESS (A) (i)
SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR
(iii) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION,
SATISFACTORY TO COUNSEL FOR THE ISSUER, SHALL HAVE BEEN OBTAINED WITH
RESPECT TO SUCH DISPOSITION AND (B) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
ISSUER'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NO
INDIVIDUAL MAY BENEFICIALLY OWN COMMON SHARES IN EXCESS OF THE THEN
APPLICABLE OWNERSHIP LIMIT WITH RESPECT TO COMMON SHARES, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN
SHARES IN EXCESS OF THE ABOVE LIMITATION MUST IMMEDIATELY NOTIFY THE
COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT DEFINITION HAVE THE
MEANINGS DEFINED IN THE ISSUER'S ARTICLES OF INCORPORATION, AS THE
SAME MAY BE FURTHER AMENDED FROM TIME TO TIME, A COPY OF WHICH,
INCLUDING THE RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT
WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS. IF THE
RESTRICTIONS ON OWNERSHIP AND
TRANSFER ARE VIOLATED, THE COMMON SHARES REPRESENTED HEREBY WILL BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED TRANSFERRED TO
A SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS AMENDED,
LIMITING THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S COMMON STOCK.
7. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and assigns.
8. AMENDMENTS. This Warrant may not be supplemented, amended or
otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
9. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of New York.
CENTERMARK PROPERTIES, INC.
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
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
EXHIBIT A
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:
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By:
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Name:
Title:
