EXHIBIT 1.3
INLAND RETAIL REAL ESTATE TRUST, INC.
2,000,000 SHARES OF COMMON STOCK
$.01 PAR VALUE
WARRANT PURCHASE AGREEMENT
________________, 2000
This Warrant Purchase Agreement (the "Agreement") is made by and
between Inland Retail Real Estate Trust, Inc., a Maryland corporation (the
"Company"), and Inland Securities Corporation, an Illinois corporation (the
"Warrantholder").
The Company hereby agrees to issue and sell, and the Warrantholder
agrees to purchase, for the price of $.0008 per warrant, warrants as hereinafter
described (the "Soliciting Dealer Warrants") to purchase one share of the
Company's shares of common stock, $.01 par value per share (the "Shares") for
each 25 Shares sold by the Inland Securities Corporation acting as the managing
dealer (the "Dealer Manager") and/or such broker-dealers registered with the
National Association of Securities Dealers, Inc. as the Dealer Manager may
designate (the "Soliciting Dealers"), up to a maximum of 2,000,000 Soliciting
Dealer Warrants. The price per Share at which the Soliciting Dealer Warrants are
exercisable and the number of Shares purchasable per Soliciting Dealer Warrant
are subject to adjustment pursuant to Subsection (b) of Section 7 and Section 8
hereof. The Soliciting Dealer Warrants are being purchased in connection with a
"best efforts" offering of 50,000,000 Shares (the "Offering"), pursuant to that
certain Dealer Manager Agreement (the "Dealer Manager Agreement"), dated
___________, 2000 between the Company and the Warrantholder as the Dealer
Manager and as a representative of the Soliciting Dealers who may receive
Soliciting Dealer Warrants.
The issuance of the Soliciting Dealer Warrants shall occur quarterly
commencing 60 days after the date on which Shares are first sold pursuant to the
Offering and such issuances shall be subject to the terms and conditions set
forth in the Dealer Manager Agreement.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Soliciting Dealer Warrants and the respective rights
and obligations thereunder, the Company and the Warrantholder, for value
received, hereby agree as follows:
1. FORM AND TRANSFERABILITY OF SOLICITING DEALER WARRANTS.
(a) REGISTRATION. The Soliciting Dealer Warrant(s) shall be numbered
and shall be registered on the books of the Company when issued.
(b) FORM OF SOLICITING DEALER WARRANTS. The text and form of the
Soliciting Dealer Warrants and of the Election to Purchase shall be
substantially as set forth in Exhibit "A" and Exhibit "B," respectively,
attached hereto and incorporated herein. The price per Share (the "Warrant
Price") and the number of Shares issuable upon exercise of the Soliciting Dealer
Warrants are subject to adjustment upon the occurrence of certain events, all as
hereinafter provided. The Soliciting Dealer Warrants shall be dated as of the
date of signature thereof by the Company either upon initial issuance or upon
division, exchange, substitution or transfer.
(c) TRANSFER. The Soliciting Dealer Warrants shall be transferable
only on the books of the Company maintained at its principal office or that of
its designated transfer agent, if designated, upon delivery thereof duly
endorsed by the Warrantholder or by its duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. Upon any registration of transfer, the Company shall
execute and deliver a new Soliciting Dealer Warrant to the person entitled
thereto. Assignments or transfers shall be made pursuant to the form of
Assignment attached as Exhibit "C" hereto.
(d) LIMITATIONS ON TRANSFER OF SOLICITING DEALER WARRANT. The
Soliciting Dealer Warrants shall not be sold, transferred, assigned, pledged,
exchanged or hypothecated (collectively "Transfer") by the Warrantholder, for a
period of one year following the date that the registration statement relating
to the Offering is declared effective by the Securities and Exchange Commission
(the "Effective Date of the Offering"), except to: (i) one or more persons, each
of whom on the date of transfer is a bona fide officer or partner of the
Warrantholder or a bona fide officer or partner of a successor to the
Warrantholder as provided in clause (iv) of this Subsection (d); (ii) a
partnership or partnerships, all of the partners of which are a Warrantholder
and one or more persons, each of whom on the date of transfer is a "Principal"
(as that term is defined in the next paragraph of this Subsection (d)) of a
Warrantholder or a Principal of a successor to a Warrantholder; (iii)
broker-dealer firms which have executed, and are not then in default of, a
"Soliciting Dealers Agreement" entered into with the Dealer Manager (the
"Selling Group") and one or more persons, each of whom on the date of transfer
is a Principal of a member of the Selling Group or a Principal of a successor to
a member of the Selling Group; (iv) a successor to a Warrantholder through
merger or consolidation; (v) a purchaser of all or substantially all of a
Warrantholder's assets; or by (vi) will, pursuant to the laws of descent and
distribution, or the operation of law; provided, however, that commencing one
year from the Effective Date of the Offering, a Transfer may be made to a third
party solely for the purpose of immediate exercise of the Soliciting Dealer
Warrant and sale of the underlying Shares by such third party. Each Soliciting
Dealer Warrant may be divided or combined, upon written request to the Company
by the Warrantholder, into a certificate or certificates representing the right
to purchase the same aggregate number of Shares.
As used above, the term "Principal" shall include an officer or partner
of an entity which is a member of the National Association of Securities
Dealers, Inc.
Unless the context indicates otherwise, the term "Warrantholder" shall
include any transferee of the Soliciting Dealer Warrant, and the term "Warrant"
shall include any and all
Soliciting Dealer Warrants outstanding pursuant to this Agreement, including
those evidenced by a certificate or certificates issued upon division, exchange,
substitution or transfer pursuant to this Agreement.
(e) EXCHANGE OR ASSIGNMENT OF SOLICITING DEALER WARRANT. Any
Soliciting Dealer Warrant certificate may be assigned or exchanged without
expense for another certificate or certificates entitling the Warrantholder to
purchase a like aggregate number of Shares as the certificate or certificates
surrendered then entitled such Warrantholder to purchase. Any Warrantholder
desiring to exchange a Soliciting Dealer Warrant certificate shall make a
request in writing, delivered to the Company, and shall surrender, properly
endorsed, the certificate evidencing the Soliciting Dealer Warrant to be so
assigned or exchanged. Thereupon, the Company shall execute and deliver to the
person entitled thereto a new Soliciting Dealer Warrant certificate as so
requested.
Any Warrantholder desiring to assign a Soliciting Dealer Warrant shall
make such request in writing delivered to the Company, and shall surrender,
properly endorsed, the certificate evidencing the Soliciting Dealer Warrant to
be so assigned, with an instrument of assignment duly executed accompanied by
proper evidence of assignment, succession or authority to transfer, and funds
sufficient to pay any transfer tax, whereupon the Company shall, without charge,
execute and deliver a new Soliciting Dealer Warrant certificate in the name of
the assignee named in such instrument of assignment and the original Soliciting
Dealer Warrant certificate shall promptly be canceled.
2. TERMS AND EXERCISE OF SOLICITING DEALER WARRANTS.
(a) EXERCISE PERIOD. Subject to the terms of this Agreement, the
Warrantholder shall have the right to purchase one Share from the Company at a
price of $12 (120% of the initial offering price per Share), subject to
modification, as provided in Subsection (b) of Section 7 and in Section 8 below,
during the time period beginning one year from the date the Soliciting Dealer
Warrants are issued to the Warrantholder and ending on the date which shall be
five years from the Effective Date of the Offering (the "Exercise Period"), or
if any such date is a day on which banking institutions in Chicago, Illinois are
authorized by law to close, then on the next succeeding day which shall not be
such a day, to purchase from the Company up to the number of fully paid and
nonassessable Shares which the Warrantholder may at the time be entitled to
purchase pursuant to the Soliciting Dealer Warrant, a form of which is attached
hereto as Exhibit "A."
(b) METHOD OF EXERCISE. The Soliciting Dealer Warrant shall be
exercised by surrender to the Company, at its principal office in Oak Brook,
Illinois or at the office of the Company's stock transfer agent, if any, or at
such other address as the Company may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the books of the
Company, of the certificate evidencing the Soliciting Dealer Warrant to be
exercised, together with the form of Election to Purchase, included as Exhibit
"B" hereto, duly completed and signed, and upon payment to the Company of the
Warrant Price (as determined in accordance with the provisions of Sections 7 and
8 hereof), for the number of Shares with respect to which such Soliciting Dealer
Warrant is then being exercised together with all taxes applicable upon
such exercise. Payment of the aggregate Warrant Price for the number of
Shares with respect to which the Soliciting Dealer Warrant is being exercised
shall be made in cash or by certified check or cashier's check, payable to the
order of the Company. A Soliciting Dealer Warrant may not be exercised if the
Shares to be issued upon the exercise of the Soliciting Dealer Warrant have not
been registered (or be exempt from registration) in the state of residence of
the holder of the Soliciting Dealer Warrant or if a prospectus relating to the
Offering (the "Prospectus") required under the laws of such state cannot be
delivered to the buyer on behalf of the Company. In addition, holders of
Soliciting Dealer Warrants may not exercise the Soliciting Dealer Warrant to the
extent such exercise will cause them to exceed the ownership limits set forth in
the Company's Second Amendment and Restatement of Charter, as amended (the
"Articles"). If any Soliciting Dealer Warrant has not been exercised by the end
of the Exercise Period, it will terminate and the Warrantholder will have no
further rights thereunder.
(c) PARTIAL EXERCISE. The Soliciting Dealer Warrants shall be
exercisable, at the election of the Warrantholder, either in full or from time
to time in part and, in the event that the Soliciting Dealer Warrant is
exercised with respect to less than all of the Shares specified therein at any
time prior to the Termination Date, a new certificate evidencing the remaining
Soliciting Dealer Warrants shall be issued by the Company.
(d) SHARE ISSUANCE UPON EXERCISE. Upon such surrender of the
Soliciting Dealer Warrant certificate and payment of such Warrant Price, the
Company shall issue and cause to be delivered with all reasonable dispatch to
the Warrantholder in such name or names as the Warrantholder may designate in
writing, a certificate or certificates for the number of full Shares so
purchased upon the exercise of the Soliciting Dealer Warrant, together with
cash, as provided in Section 9 hereof, with respect to any fractional Shares
otherwise issuable upon such surrender. Such Shares shall bear the legend
described in Section 5 below and any other legends generally placed on
certificates for the Shares, including a legend provided for in the Articles
with regard to restrictions on transferability for the purpose of the Company's
maintenance of its status as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and to prohibit
exceeding the ownership limits set forth in the Company's Articles, and the
transfer and/or sale of any Shares so issued shall be limited in the manner and
to the extent provided by such legends and ownership limits and the Articles and
By-laws of the Company. Such certificate or certificates shall be deemed to have
been issued and any person so designated to be named therein shall be deemed to
have become a holder of such Shares as of the close of business on the date of
the surrender of the Soliciting Dealer Warrant and payment of the Warrant Price,
as hereinafter defined, notwithstanding that the certificates representing such
Shares shall not actually have been delivered or that the stock transfer books
of the Company shall then be closed.
3. MUTILATED OR MISSING SOLICITING DEALER WARRANT.
In case the certificate or certificates evidencing the Soliciting
Dealer Warrant shall be mutilated, lost, stolen or destroyed, the Company shall,
at the request of the Warrantholder, issue and deliver in exchange and
substitution for and upon cancellation of the mutilated certificate of
certificates, or in lieu of and in substitution for the certificate or
certificates lost, stolen or destroyed, a new Soliciting Dealer Warrant
certificate or certificates of like tenor and date and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of such Soliciting Dealer
Warrant, and of reasonable bond of indemnity, if requested, also satisfactory to
the Company in form and amount and at the applicant's cost.
4. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep
reserved so long as the Soliciting Dealer Warrants remains outstanding, out of
its authorized Shares, such number of Shares as shall be subject to purchase
under the outstanding Soliciting Dealer Warrants.
5. LEGEND ON SHARES ISSUED UPON EXERCISE OF SOLICITING DEALER WARRANT.
Each certificate for Shares initially issued upon exercise of the
Soliciting Dealer Warrant, unless at the time of exercise such Shares are
registered with the Securities and Exchange Commission (the "Commission"),
under the Securities Act of 1933, as amended (the "Act"), shall bear the
following legend:
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THESE
SHARES SHALL BE MADE EXCEPT PURSUANT TO REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby need no longer be subject to such restrictions.
Certificates for Shares shall also bear the legend provided for in the Company's
Articles.
6. PAYMENT OF TAXES.
The Company shall pay all documentary stamp taxes, if any, attributable
to the initial issuance of the Shares; provided, however, that the Company shall
not be required to pay any tax or taxes which may be payable with respect to any
secondary transfer of the Soliciting Dealer Warrants or the Shares.
7. WARRANT PRICE.
(a) The price per Share at which Shares shall be purchasable on the
exercise of the Soliciting Dealer Warrant shall be $12 (the "Warrant Price"),
subject, however, to adjustment as provided in Subsection (b) of this Section
7 and in Section 8.
(b) Notwithstanding Subsection (a) of this Section 7 if, at the time
of any exercise of the Soliciting Dealer Warrant, the Offering Price of
Shares pursuant to the Prospectus has been increased, then the Warrant Price
shall be adjusted (the "Adjusted Warrant Price") to be equal to one hundred
twenty percent (120%) of the then current Offering Price of Shares offered or
sold pursuant to the Prospectus.
8. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of the
Soliciting Dealer Warrant and the Warrant Price shall be subject to adjustment
from time to time (in addition to any adjustments in accordance with Subsection
(b) of Section 7 above) upon the happening of certain events, as follows:
(a) In case the Company shall: (i) pay a dividend in Shares or make
a distribution in Shares; (ii) subdivide its outstanding Shares; (iii)
combine its outstanding Shares into a smaller number of Shares, or (iv)
issue, by reclassification of its Shares, other securities of the Company,
then the number and kind of securities purchasable upon the exercise of the
Soliciting Dealer Warrant immediately prior thereto shall be adjusted so that
the Warrantholder shall be entitled to receive the number and kind of
securities of the Company which it would have owned or would have been
entitled to receive after the happening of any of the events described above
had the Soliciting Dealer Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any
adjustment made pursuant to this Subsection (a) shall become effective on the
effective date of such event retroactive to the record date, if any, for such
event.
(b) No adjustment in the number of securities purchasable hereunder
shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of securities (calculated
to the nearest full Share thereof) then purchasable upon the exercise of the
Soliciting Dealer Warrant or, if the Soliciting Dealer Warrant is not then
exercisable, the number of securities purchasable upon the exercise of the
Soliciting Dealer Warrant on the first date thereafter that the Soliciting
Dealer Warrant becomes exercisable; provided, however, that any adjustment
which by reason of this Subsection (b) is not required to
be made immediately shall be carried forward and taken into account in any
subsequent adjustment.
(c) Whenever the number of Shares purchasable upon the exercise of
the Soliciting Dealer Warrant is adjusted as herein provided, the Warrant Price
shall be adjusted by multiplying such Warrant Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of Shares
purchasable upon the exercise of the Soliciting Dealer Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(d) For the purpose of this Section 8, the term "Shares" shall mean:
(i) the class of stock designated as the Shares of the Company at the date of
this Agreement; or (ii) any other class of stock resulting from successive
changes or reclassification of such Shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that at any time, as a result of an adjustment made pursuant to this
Section 8, the Warrantholder shall become entitled to purchase any shares of
stock of the Company other than Shares, thereafter the number of such other
shares of stock of the Company so purchasable upon the exercise of the
Soliciting Dealer Warrants and the Warrant Price shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in this Section 8.
(e) Whenever the number of Shares and/or securities purchasable upon
the exercise of the Soliciting Dealer Warrants or the Warrant Price is adjusted
as herein provided, the Company shall cause to be promptly mailed to the
Warrantholder by first class mail, postage prepaid, notice of such adjustment
setting forth the number of Shares and/or securities purchasable upon the
exercise of the Soliciting Dealer Warrants and/or the Warrant Price after such
adjustment, a brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made.
(f) In case of any reclassification, capital reclassification,
capital reorganization or other change in the outstanding Shares of the Company
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of an issuance of Shares by way of
dividend or other distribution, or of a subdivision or combination of the
Shares), or in case of any consolidation or merger of the Company with or into
another corporation or entity (other than a merger with a subsidiary in which
merger the Company is the continuing corporation and which does not result in
any reclassification, capital reorganization or other change in the outstanding
Shares of the Company) as a result of which the holders of the Company's Shares
become holders of other shares of securities of the Company or of another
corporation or entity, or such holders receive cash or other assets, or in case
of any sale or conveyance to another corporation of the property, assets or
business of the Company as an entirety or substantially as an entirety, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter upon payment of the Warrant Price in effect immediately
prior to such action to purchase upon the exercise of the Soliciting Dealer
Warrant the kind and number of securities and property which it would have owned
or have been entitled to have received after the happening of such
reclassification, capital reorganization, change in the outstanding Shares of
the Company, consolidation, merger, sale or conveyance had the Soliciting Dealer
Warrants been exercised immediately prior to such action.
The agreement referred to in this Subsection (f) shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 8. The provisions of this Subsection
(f) shall similarly apply to successive reclassification, capital
reorganizations, changes in the outstanding Shares of the Company,
consolidations, mergers, sales or conveyances.
(g) Except as provided in this Section 8, no adjustment with respect
to any dividends shall be made during the term of the Soliciting Dealer Warrants
or upon the exercise of the Soliciting Dealer Warrants.
(h) Irrespective of any adjustments in the Warrant Price (pursuant
to Subsection (b) of Section 7 above or this Section 8) or the number or kind of
securities purchasable upon the exercise of the Soliciting Dealer Warrant, the
Soliciting Dealer Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price or number or kind of securities
stated in the Soliciting Dealer Warrant initially issuable pursuant to this
Agreement.
9. FRACTIONAL INTEREST.
The Company shall not be required to issue fractional Shares or
securities upon the exercise of the Soliciting Dealer Warrants. If any such
fractional Shares would, except for the provisions of this Section 9, be
issuable upon the exercise of the Soliciting Dealer Warrants (or any specified
portion thereof), the Company may, at its election, pay an amount in cash equal
to the then current market price per Share multiplied by such fraction. For
purposes of this Agreement, the term "current market price" shall mean: on any
date the average of the Closing Price (as defined below) per Share for the five
consecutive Trading Days (as defined below) ending on such date. The "Closing
Price" on any date means the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the principal national securities exchange on which the Shares are
listed or admitted to trading or, if the Shares are not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by The Nasdaq Stock Market, Inc. ("Nasdaq"), or, if Nasdaq
is no longer in use, the principal automated quotation system that may then be
in use or, if the Shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Shares selected by the Board, or if there is no
professional market maker making a market in the Shares, the average of the last
ten (10) sales pursuant to the Offering if the Offering has not concluded, or if
the Offering has concluded, the average of the last ten (10) purchases by the
Company pursuant to its Share Repurchase Program (the "SRP"), and if there are
fewer than ten (10) of such purchases under the SRP, then the average of such
lesser number of purchases, or, if the SRP is not then in existence, the price
at which the Company is then offering Shares to the public if the Company is
then engaged in a public offering of Shares, or if the Company is not then
offering Shares to the public, the price at which a Stockholder may purchase
Shares pursuant to the Company's Distribution Reinvestment Program (the "DRP")
if such DRP is then in existence, or if the DRP is not then in existence, the
fair market value of the Shares as determined by the Company, in its sole
discretion. "Trading Day" shall mean a day on which the principal national
securities exchange or national automated quotation system on which the Shares
are listed or admitted to trading is open for the transaction of business or, if
the Shares are not listed or admitted to trading on any national securities
exchange or national automated quotation system, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of
Illinois are authorized or obligated by law or executive order to close.
10. NO RIGHTS AS STOCKHOLDER; NOTICES OF WARRANTHOLDER.
Nothing contained in this Agreement or in the Soliciting Dealer Warrant
shall be construed as conferring upon the Warrantholder or its transferee any
rights as a Stockholder of the Company, either at law or in equity, including
the right to vote, receive dividends, consents or notices as a Stockholder with
respect to any meeting of Stockholders for the election of directors of the
Company or for any other matter.
11. REGISTRATION OF SOLICITING DEALER WARRANTS AND SHARES
PURCHASABLE THEREUNDER.
The distribution of the Soliciting Dealer Warrants and the Shares
purchasable thereunder to the Dealer Manager and/or to one or more Soliciting
Dealers is being registered as part of the Offering. The Company undertakes to
make additional filings with the Commission to the extent required to keep the
issuance of Shares issuable pursuant to the Soliciting Dealer Warrants to
Soliciting Dealers registered through the date which shall be five years from
the Effective Date of the Offering. Any sales or transfers of Shares so issued
shall be subject in all respects to the limitations and restrictions contained
in Subsection (d) of Section 2 and to the provisions of Section 5 above.
12. INDEMNIFICATION.
In the event of the filing of any registration statement with respect
to the Soliciting Dealer Warrants or the Shares pursuant to Section 11 above,
the Company and the Warrantholder (and/or selling Warrantholder or such holder
of Shares, as the case may be), shall agree to indemnify and hold harmless the
other to the same extent and in the same manner as provided in the Dealer
Manager Agreement.
13. CONTRIBUTION.
In order to provide for just and equitable contribution under the Act
in any case in which: (a) the Warrantholder or any holder of Shares makes a
claim for indemnification pursuant to Section 12 hereof, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right to appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 12 hereof
provide for indemnification in such case; or (b) contribution under the Act may
be required on the part of the Warrantholder or any holder of Shares, the
Company and the Warrantholder, or such holder of Shares, shall agree to
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (which shall, for all purposes of this Agreement, including, but
not limited to, all costs of defense and investigation and all attorneys' fees),
in either such case (after contribution from others) on the basis of relative
fault as well as any other relevant equitable considerations in the same manner
as provided by the parties in the Dealer Manager Agreement.
14. NOTICES.
Any notice given pursuant to this Agreement by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, return receipt requested:
(a) If to the Warrantholder, addressed to:
Inland Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(b) If to the Company, addressed to:
Inland Retail Real Estate Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Each party hereto may, from time to time, change the address to which
notices to it are to be delivered or mailed hereunder by notice in accordance
herewith to the other party.
15. PARTIES IN INTEREST.
Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Warrantholder and, to the extent expressed, any
holder of Shares, any Person controlling the Company or the Warrantholder or any
holder of Shares, directors of the Company, nominees for directors (if any)
named in the Prospectus, or officers of the Company who have signed the
Registration Statement, any legal or equitable right, remedy or claim under this
Agreement, and this Agreement shall be for the sole and exclusive benefit of the
aforementioned parties.
16. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the parties listed in Section 15 above shall bind and inure to the
benefit of their respective executors, administrators, successors and assigns
hereunder; provided, however, that the rights of the Warrantholder or holder of
Shares shall be assignable only to those Persons specified in Subsection (d) of
Section 1 hereof, in which event such assignee shall be bound by each of the
terms and conditions of this Agreement.
17. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company shall not merge or consolidate with or into any other
Person or sell all or substantially all of its property to another Person unless
it complies with the provisions of Subsection (f) of Section 8 hereof.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All statements contained in any schedule, exhibit, certificate or other
instrument delivered by or on behalf of the parties hereto, or in connection
with the transactions contemplated by this Agreement, shall be deemed to be
representations and warranties hereunder. Notwithstanding any investigations
made by or on behalf of the parties to this Agreement, all representations,
warranties and agreements made by the parties to this Agreement or pursuant
hereto shall survive.
19. CHOICE OF LAW.
This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Illinois,
including all matters of construction, validity, performance and enforcement,
and without giving effect to the principles of conflict of laws.
20. JURISDICTION.
The parties submit to the jurisdiction of the Courts of the State of
Illinois or a Federal Court impaneled in the State of Illinois for the
resolution of all legal disputes arising under the terms of this Agreement.
21. ENTIRE AGREEMENT.
Except as provided herein, this Agreement, including exhibits, contains
the entire agreement of the parties, and supersedes all existing negotiations,
representations or agreements and all other oral, written or other
communications between them concerning the subject matter of this Agreement.
22. SEVERABILITY.
If any provision of this Agreement is unenforceable, invalid or
violates applicable law, such provision shall be deemed stricken and shall not
affect the enforceability of any other provisions of this Agreement.
23. CAPTIONS.
The captions in this Agreement are inserted only as a matter of
convenience and for reference and shall not be deemed to define, limit, enlarge
or describe the scope of this Agreement or the relationship of the parties, and
shall not affect this Agreement or the construction of any provisions herein.
24. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
Inland Retail Real Estate Trust, Inc.
a Maryland corporation
By:
---------------------------------------------
Name and Title
Inland Securities Corporation,
an Illinois corporation
By:
----------------------------------------------
Name and Title
EXHIBIT A
INLAND RETAIL REAL ESTATE TRUST, INC.
SOLICITING DEALER WARRANT NO. ____________
NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS WARRANT OR THE
SHARES PURCHASABLE HEREUNDER SHALL BE MADE EXCEPT PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT
TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION
IS NOT REQUIRED. TRANSFER OF THIS WARRANT IS ALSO RESTRICTED BY THAT
CERTAIN WARRANT PURCHASE AGREEMENT DATED AS OF ___________, 2000,
A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.
WARRANT TO PURCHASE ________ SHARES OF COMMON STOCK OF INLAND RETAIL
REAL ESTATE TRUST, INC.
Exercisable commencing on _________________, ____
Void after 5:00 P.M. Central Standard Time on [FIVE YEARS AFTER
EFFECTIVE DATE] (the "Exercise Closing Date").
THIS CERTIFIES that, for value received, _____________________________
(the "Warrantholder"), or registered assigns, is entitled, subject to the terms
and conditions set forth in this Warrant (the "Warrant"), to purchase from
Inland Retail Real Estate Trust, Inc., a Maryland corporation (the "Company"),
_________ fully paid and nonassessable shares of Common Stock, $.01 par value
per share (the "Shares") of the Company at any time during the period commencing
on ______________, 2000 and continuing up to 5:00 P.M. central standard time on
[FIVE YEARS AFTER EFFECTIVE DATE] for $12 per Share, and is subject to all the
terms thereof, including the limitations on transferability as set forth in that
certain Warrant Purchase Agreement between Inland Securities Corporation and the
Company dated ____________, 2000. Pursuant to the Warrant Purchase Agreement,
the exercise price of Shares purchased pursuant to this Warrant may be amended
to a price equal to one hundred percent (120%) of the then current offering
price of Shares of the Company pursuant to the terms of the Prospectus dated
_______________, 2000.
THIS WARRANT may be exercised by the holder thereof, in whole or in
part, by the presentation and surrender of this Warrant with the form of
Election to Purchase duly executed, with signature(s) guaranteed, at the
principal office of the Company (or at such other address as the Company may
designate by notice to the holder hereof at the address of such holder appearing
on the books of the Company), and upon payment to the Company of the purchase
price in cash or by certified check or bank cashier's check. The Shares so
purchased shall be deemed to be issued to the holder hereof as the record owner
of such Shares as of the close of business on the date on which this Warrant
shall have been surrendered and payment made for
such Shares. The Shares so purchased shall be registered to the holder (and, if
requested, certificates issued) promptly after this Warrant shall have been so
exercised and unless this Warrant has expired or has been exercised, in full, a
new Warrant identical in form, but representing the number of Shares with
respect to which this Warrant shall not have been exercised, shall also be
issued to the holder hereof.
NOTHING CONTAINED herein shall be construed to confer upon the holder
of this Warrant, as such, any of the rights of a Stockholder of the Company.
Inland Retail Real Estate Trust, Inc.,
a Maryland corporation
By:
----------------------------------------------
Name and Title
EXHIBIT B
INLAND RETAIL REAL ESTATE TRUST, INC.
ELECTION TO PURCHASE
SOLICITING DEALER WARRANT
Inland Retail Real Estate Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the attached warrant (the "Warrant"), to purchase
thereunder ______ shares of the Common Stock, $.01 par value per share, of
Inland Retail Real Estate Trust, Inc. (the "Shares") provided for therein and
hereby tenders $____________ in payment of the actual exercise price thereof,
and requests that the Shares be issued in the name of _________________________
_______________________________________________________________________________
(Please Print Name, Address and SSN or FEIN of Stockholder below)
_______________________________________________________________________________
and, if said number of Shares shall not be the total possible number of Shares
purchasable under the attached Warrant certificate, that a new Warrant
certificate for the balance of the Shares purchasable under the attached Warrant
certificate be registered in the name of the undersigned Warrantholder or his
assignee as indicated below and delivered at the address state below:
Dated: __________________________________
Name of Warrantholder or Assignee: _____________________________________________
(Please Print)
________________________________________________________________________________
________________________________________________________________________________
Signature: _____________________________________________________________________
EXHIBIT C
INLAND RETAIL REAL ESTATE TRUST, INC.
SOLICITING DEALER WARRANT ASSIGNMENT
(To be signed only upon assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(Please Print Name,
Address and SSN or FEIN of
Assignee Below)
_______________________________________________________________________________
the attached Soliciting Dealer Warrant No. ____________, to purchase ________
shares of Common Stock, $.01 par value per share, of Inland Retail Real Estate
Trust, Inc. (the "Company"), hereby irrevocably constituting and appointing the
Company and/or its transfer agent as its attorney to transfer said Warrant on
the books of the Company, with full power of substitution.
Dated: _____________________
__________________________________
Signature of Registered Holder
Signature Guaranteed:
_____________________________________
Note: The above signature must
correspond with the same as written
upon the face of the attached
Warrant certificate in every particular
respect, without alteration,
enlargement or any change whatever,
unless this Warrant has been duly
assigned.
