Exhibit 10.107
NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE LAWS AND NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY BE TRANSFERRED EXCEPT AS PROVIDED IN SECTION 2 OF THIS
WARRANT.
WARRANT
to Purchase Common Stock of
XXXX-XXXX REALTY CORPORATION
Expiring December 12, 2007
This Warrant certifies that Xxxxx Xxxxx, or his registered and permitted
assigns (the "Holder"), is entitled to, subject to the terms set forth below,
subscribe for and purchase from Xxxx-Xxxx Realty Corporation (formerly Cali
Realty Corporation), a Maryland corporation (the "Company"), One Hundred
Twenty Five Thousand (125,000) duly authorized, validly issued, fully paid
and nonassessable shares of the Company's common stock, $.01 par value per
share (the common stock, including any stock into which it may be changed,
reclassified, or converted, and as it may be adjusted pursuant to Section
4(B) below, is herein referred to as the "Common Stock"). This Warrant is
one of a class of Warrants (the "Xxxx Warrants") of the Company issued to
purchase an aggregate of Five Hundred Fourteen Thousand Nine Hundred and
Seventy-Six (514,976) shares of Common Stock pursuant to the Contribution and
Exchange Agreement dated September 18, 1997 by and between the Company,
Xxxx-Xxxx Realty, L.P. (formerly Cali Realty, L.P.), a Delaware limited
partnership, the Xxxx Contributors (as defined therein) and the Xxxx Entities
(as defined therein), as amended by that certain First Amendment dated as of
December 11, 1997.
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, of the Holder's election to exercise this Warrant, which notice
shall specify the number of shares of Common Stock to be purchased, (b) cash or
a certified check payable to the Company, or such other consideration as
determined in accordance with Section 2(D) below, in an amount equal to the
aggregate purchase price of the number of shares of Common Stock 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 stock certificate or
certificates representing the aggregate number of shares of Common Stock
specified in such notice. The stock certificate or certificates so delivered
shall be in such denominations as may be specified in such notice and shall be
issued in the name of the Holder or, subject to Sections 2(E) and (F) and
Sections 4(H) and (I) below, such other name as shall be designated in such
notice. Such stock 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
shares 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 stock
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the remaining shares of Common Stock 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 stock certificates and new Warrants, except that, in
case such stock certificates or new Warrants shall be registered in a name or
names other than the name of the Holder, funds sufficient to pay all stock
transfer taxes that are payable upon the issuance of such stock certificates or
new Warrants shall be paid by the Holder at the time of delivering the notice of
exercise mentioned above.
All shares of Common Stock issued upon the exercise of this Warrant shall
be validly issued, fully paid and nonassessable and, if the Common Stock is 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 share of Common Stock, 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 share) of the
purchase price of one share of Common Stock 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 vest in five equal installments
(subject to acceleration in accordance with the terms of this Warrant), with
one-fifth of such Warrant vesting on December 31, 1997, one-fifth vesting on
December 31, 1998, one-fifth vesting on December 31, 1999, one-fifth vesting on
December 31, 2000, and one-fifth vesting December 31, 2001, and shall expire at
5:00 p.m., New York City time, on December 12, 2007, or in connection with the
Holder's earlier termination of employment with the Xxxx-Xxxx Texas Property,
L.P., the Company or any affiliate of them (the "Employer") as provided in
paragraph 2(E) below (the "Expiration Date").
(B) PURCHASE PRICE. The purchase price per share of Common Stock shall be
equal to the fair market value of the Common Stock on the date hereof. For
purposes of this paragraph 2(B), "fair market value" means the closing price as
quoted on the New York Stock Exchange at the end of the last business day
preceding the date hereof as reported in the New York edition of THE WALL STREET
JOURNAL. It is agreed that such purchase price is $38.75 per share.
(C) EXERCISE OF WARRANT. No part of any Warrant may be exercised at the
time of vesting unless the Holder shall have remained in the employ of the
Employer for such period as to which such portion of the Warrant has vested,
except as otherwise provided in paragraph 2(E) below.
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(D) PAYMENT OF PURCHASE PRICE UPON EXERCISE. Subject to the terms of
Section 2(F) hereof, the purchase price of the Common Stock as to which a
Warrant is exercised shall be paid to the Company at the time of exercise either
in cash or in such other consideration as the Executive Compensation Committee
of the Board of Directors of the Company (the "Board of Directors") or such
other committee that the Board of Directors may appoint to administer the
Warrants (the "Committee"), deems appropriate, including, but not limited to,
loans from the Employer or a third party, Common Stock already owned by the
Holder having a total fair market value, as determined by the Committee, equal
to the purchase price, or a combination of cash and Common Stock having a total
fair market value, as so determined, equal to the purchase price. The Committee
in its sole discretion may also provide that the purchase price may be paid by
delivering a properly executed exercise notice in a form approved by the
Committee, together with irrevocable instructions to a broker to promptly
deliver to the Company the amount of applicable sale or loan proceeds to pay the
purchase price.
(E) EXERCISE IN THE EVENT OF DEATH, DISABILITY, RETIREMENT OR OTHER
TERMINATION OF EMPLOYMENT, OR CHANGE IN CONTROL.
(1) DEATH OR DISABILITY. If a Holder's employment with the Employer
shall terminate because of his death or due to Disability (as defined
below), the Committee may, in its sole discretion, accelerate in whole or
in part, any or all Warrants which the Holder shall not then have been
entitled to exercise. If a Holder shall die (i) while an employee of the
Employer, or (ii) within twelve (12) months after termination of his
employment with the Employer due to Disability, such Holder's Warrants may
be exercised, to the extent that such Holder shall have been entitled to do
so on the date of his death or termination of employment due to Disability
(including, without limitation, by acceleration or otherwise) by the
Holder's Beneficiary (as defined below) or by the person or persons to whom
the Holder's rights under the Warrants pass by will or applicable law, or
if no such person has such right, by his executors or administrators, at
any time, or from time to time, but not later than the Expiration Date or
one year after the Holder's death, whichever date is earlier. If a
Holder's employment with the Employer shall terminate due to Disability,
such Holder may exercise his Warrants, to the extent that such Holder shall
have been entitled to do so at the date of the termination of his
employment (including, without limitation, by acceleration or otherwise),
at any time, or from time to time, but not later than the Expiration Date
or one year after termination of employment due to Disability, whichever
date is earlier.
(2) CHANGE IN CONTROL. In the event of a Change in Control (as
defined below), the vesting of all Warrants which the Holder shall not then
have been entitled to exercise shall be accelerated concurrently with the
occurrence of the Change in Control and the Holder shall have the right to
exercise all such Warrants at any time or from time to time through the
Expiration Date.
(3) GOOD REASON. If a Holder terminates his employment for Good
Reason (as defined below), the Committee may, in its sole discretion,
accelerate in whole or in part, any or all Warrants which the Holder shall
not then have been entitled to exercise. If a
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Holder's employment with the Employer shall terminate for Good Reason, such
Holder may exercise his Warrants, to the extent that such Holder shall have
been entitled to do so at the date of the termination of his employment
(including, without limitation, by acceleration or otherwise), at any time,
or from time to time, but not later than the Expiration Date or ninety (90)
days after termination of employment, whichever date is earlier.
"Good Reason" shall mean (A) a reduction in the Holder's Annual Base
Salary (as defined in the Holder's employment agreement with the Employer
dated December 11, 1997 (the "Employment Agreement")) as in effect at the
time in question, or any other material failure by the to comply with
Paragraph 3 of the Employment Agreement; PROVIDED, HOWEVER, that in the
event Holder is not awarded a bonus or other discretionary payment or
discretionary award described in Paragraph 3 of the Employment Agreement,
it shall not be deemed a failure or (B) failure of the Employer to obtain
the assumption of the obligation to perform the Employment Agreement by any
successor as contemplated in Paragraph 9(a) of the Employment Agreement.
(4) Subject to Section 4(A) below, if a Holder's employment shall
terminate for any reason other than death, Disability, Good Reason or a
Change in Control (each as defined below) as aforesaid, all rights to
exercise his Warrant shall terminate at the Expiration Date or three (3)
months after termination of employment, whichever date is earlier;
PROVIDED, HOWEVER, that the Committee may, in its sole discretion, grant
new Warrants or modify outstanding Warrants to permit their exercise upon a
Holder's termination of employment due to retirement with the consent of
the Employer until the earlier of the Expiration Date or twelve (12) months
after termination of employment.
"Beneficiary" means the beneficiary or beneficiaries designated in
accordance with Section 4(H) to receive the amount, if any, payable under
the Warrant upon the death of a Holder.
"Change in Control" means that any of the following events has
occurred:
(i) any "person" or "group" of persons, as such terms are used in
Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), other than any employee benefit
plan sponsored by the Company, becomes the "beneficial owner",
as such term is used in Section 13 of the Exchange Act, of
thirty percent (30%) or more of the Common Stock of the
Company issued and outstanding immediately prior to such
acquisition;
(ii) any Common Stock of the Company is purchased pursuant to a
tender or exchange offer other than an offer by the Company;
or
(iii) the dissolution or liquidation of the Company or the
consummation of any merger or consolidation of the
Company or any sale or other
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disposition of all or substantially all of its assets, if the
shareholders of the Company immediately before such
transaction own, immediately after consummation of such
transaction, equity securities (other than options and other
rights to acquire equity securities) possessing less than
thirty percent (30%) of the voting power of the surviving or
acquiring Company.
PROVIDED, HOWEVER, that notwithstanding anything herein to the contrary, no
Change in Control shall be deemed to have occurred and no rights arising
upon a Change in Control described in Section 2(E) shall exist unless the
Board of Directors directs to the contrary by resolution adopted prior to
the Change in Control. Any resolution of the Board of Directors adopted in
accordance with the provisions of this Section directing that this Section
2(E) or any of such Section become ineffective may be rescinded or
countermanded at any time with or without retroactive effect by such Board.
"Disability" means the determination by the Employer, upon the advice
of an independent qualified physician, reasonably acceptable to the Holder,
that the Holder has become physically or mentally incapable of performing
his duties under his Employment Agreement and such disability has disabled
the Holder for a cumulative period of one hundred eighty (180) days within
a twelve (12) month period.
(F) REPURCHASE RIGHT. In the event of termination of the Holder's
employment as a result of either (i) death or Disability, (ii) termination by
the Employer for any reason other than Cause or (iii) termination by the Holder
of his employment for Good Reason, the Holder shall be entitled, at the option
of the Holder, his estate or his personal representative, within ninety (90)
days (one (1) year in the case of termination as a result of the Holder's death
or Disability) of the date of such termination, to require the Company (upon
written notice delivered within one hundred eighty (180) days following the date
of termination) to repurchase all or any portion of the Holder's vested Warrants
at a price equal to the difference between the repurchase fair market value (as
defined below) of the shares of Common Stock for which the Warrants to be
repurchased are exercisable and the exercise price of such Warrant as of the
date of the Holder's termination of employment. For purposes of this paragraph
2(F), "repurchase fair market value" means the average of the closing price on
the New York Stock Exchange of the Common Stock on each of the trading days
within the thirty (30) days immediately preceding the date of termination of the
Holder's employment.
(G) TRANSFERABILITY AND EXERCISE OF WARRANTS. Subject to the provisions
of any registration rights agreement entered into in connection with the
registration of shares of Common Stock underlying the Xxxx Warrants, no Warrant
shall be transferable other than by will or by the laws of descent and
distribution. During the lifetime of the Holder, a Warrant shall be exercisable
only by the Holder. This Warrant shall be exercisable or convertible (a) only
under circumstances such that the issue of Common Stock 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 Stock in compliance
therewith; PROVIDED, HOWEVER, that the foregoing shall not apply if
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this Warrant is exercised by the original Holder hereof. This Warrant shall be
transferable only 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.
(H) INVESTMENT REPRESENTATION. The Holder, by acceptance hereof, (i)
hereby represents that he 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 and, to the extent not registered under the 1933
Act, any Common Stock purchased or acquired pursuant hereto is being or will be
acquired solely for the Holder's own account and not as a nominee for any other
party, and with a current investment intent and not with a view to distribution
thereof. The Holder (or any person acting under Sections 2(E), (F) or (G)
above) shall deliver to the Company, at the time of any exercise of a Warrant or
portion thereof, a written representation that the shares 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 is the original
Holder of this Warrant. Delivery of such representation prior to the delivery
of any Common Stock 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 Stock. In the event
certificates for Common Stock are delivered upon the exercise of a 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(G) 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 stock 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 shares of Common Stock without having a new Warrant issued.
All of the provisions of this Section 3 are subject to the provisions of
Sections 2(E), (F) and (G) above.
Section 4. GENERAL PROVISIONS
(A) TERMINATION FOR CAUSE. Notwithstanding anything herein contained to
the contrary, if a Holder's employment is terminated for Cause, all Warrants, to
the extent not vested on the date of termination, shall be forfeited. "Cause"
shall mean (1) the willful and continued failure by the Holder to substantially
perform his duties under his Employment Agreement (other than any such failure
resulting from the Holder's incapacity due to physical or mental illness) for a
period of thirty
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(30) days after written demand for substantial performance is delivered by the
Employer specifically identifying the manner in which the Employer believes the
Holder has not substantially performed his duties, (2) willful misconduct by the
Holder which is materially injurious to the Employer or its affiliates,
monetarily or otherwise, or (3) the willful violation by the Holder of the
provisions of any covenant not to compete or breach of confidential information
described in Paragraphs 5 and 7 of the Employment Agreement. For purposes of
this Paragraph 4(A), no act, or failure to act, on the Holder's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in
furtherance of the interests of the Employer or (D) conviction of, or plea of
guilty to a felony.
(B) CERTAIN ADJUSTMENTS. In the event of any change in the Common Stock by
reason of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares, or any rights
offering to purchase Common Stock at a price substantially below fair market
value, or of any similar change affecting the Common Stock, the number and kind
of shares subject to Warrants in and the purchase price per share thereof shall
be appropriately adjusted consistent with such change in such manner as the
Committee may deem equitable to prevent substantial dilution or enlargement of
the rights granted to, or available for, the Holders hereunder. Any adjustment
of a Warrant pursuant to this Section 4(B) 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
of such Warrant shall agree otherwise. The Committee shall give notice to each
Holder of any adjustment made pursuant to this Section 4(B) and, upon notice,
such adjustment shall be effective and binding for all purposes under this
Warrant.
(C) 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 Holders' rights under this Warrant in any
agreement or plan which it may enter into or adopt to effect any such merger,
consolidation, reorganization or transfer of assets.
(D) NO CLAIM OR RIGHT. Nothing contained herein nor any action taken
hereunder shall be construed as giving any employee any right to be retained in
the employ of the Company.
(E) AWARDS NOT TREATED AS COMPENSATION UNDER BENEFIT PLANS. No Warrant
shall be considered as compensation under any employee benefit plan of the
Employer or the Company, except as specifically provided in any such plan or as
otherwise determined by the Board of Directors.
(F) LISTING AND QUALIFICATION OF COMMON STOCK. The Company, in its
discretion, may postpone the issuance or delivery of Common Stock upon any
exercise of a Warrant until completion of such stock exchange listing or other
qualification of such shares under any state or federal law, rule or regulation
as the Company may consider appropriate, and may require any
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Holder, Beneficiary or legal representative to make such representations and
furnish such information as it may consider reasonably appropriate in connection
with the issuance or delivery of the shares in compliance with applicable laws,
rules and regulations. The Company covenants, however, to effect the listing of
the Common Stock underlying the Warrants on the New York Stock Exchange prior to
December 1998.
(G) TAXES. The Company may make such provisions and take such steps as it
may deem necessary or appropriate for the withholding of all federal, state and
local taxes required by law to be withheld with respect to Warrants exercised
pursuant to this Agreement including, but not limited to (i) deducting the
amount required to be withheld from any other amount then or thereafter payable
to a Holder, Beneficiary or legal representative, and (ii) requiring a Holder,
Beneficiary or legal representative to pay to the Company the amount required to
be withheld as a condition of releasing Common Stock. In addition, subject to
such rules and regulations as the Committee shall from time to time establish,
Holders shall be permitted to satisfy federal, state and local taxes, if any,
imposed upon the issuance of Common Stock at a rate up to such Holder's maximum
marginal tax rate with respect to each such tax by (i) irrevocably electing to
have the Company deduct from the number of shares Common Stock otherwise
deliverable upon exercise of a Warrant such number of shares of Common Stock as
shall have a value equal to the amount of tax to be withheld, (ii) delivering to
the Company such portion of the Common Stock delivered upon exercise of the
Warrant as shall have a value equal to the amount of tax to be withheld, or
(iii) delivering to the Company such Common Stock or combination of Common Stock
and cash as shall have a value equal to the amount of tax to be withheld.
(H) DESIGNATION AND CHANGE OF BENEFICIARY. Each Holder shall file with
the Committee a written designation of one or more persons as the Beneficiary
who shall be entitled to receive the amount, if any, payable under this Warrant
upon his death. A Holder may, from time to time, revoke or change his
Beneficiary designation without the consent of any prior Beneficiary by filing a
new designation with the Committee. The last such designation received by the
Committee shall be controlling; PROVIDED, HOWEVER, that no designation, or
change or revocation thereof, shall be effective unless received by the
Committee prior to the Holder's death, and in no event shall it be effective as
of a date prior to such receipt.
(I) PAYMENTS TO PERSONS OTHER THAN A HOLDER. If the Committee shall find
that any person to whom any amount is payable under this Warrant is unable to
care for his affairs because of illness or accident, or is a minor, or has died,
then any payment due to such person or his estate (unless a prior claim therefor
has been made by a duly appointed legal representative), may, if the Committee
so directs the Company, be paid to his spouse, a child, a relative, an
institution maintaining or having custody of such person, or any other person
deemed by the Committee to be a proper recipient on behalf of such person
otherwise entitled to payment. Any such payment shall be a complete discharge
of the liability of the Committee and the Company therefor.
(J) GENERAL CREDITOR STATUS. Holders 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 con-
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strued to create a trust of any kind, or a fiduciary relationship between the
Company and any Holder, Beneficiary, legal representative or any other person.
To the extent that any person 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 Committee may authorize the creation of trusts or other
arrangements to meet the obligations created hereunder to deliver Common Stock
or pay cash; PROVIDED, FURTHER, HOWEVER, that, unless the Committee otherwise
determines with the consent of the affected Holder, the existence of such trusts
or other arrangements shall be consistent with the "unfunded" status of the
Employee Stock Option Plan of Cali Realty Corporation.
(K) NO LIABILITY OF COMMITTEE MEMBERS. The Holder of this Warrant agrees
that no member of the Committee shall be personally liable by reason of any
contract or other instrument executed by such member or on his behalf in his
capacity as a member of the Committee nor for any mistake of judgment made in
good faith.
Section 5. COVENANT TO RESERVE SHARES OF COMMON STOCK.
The Company covenants and agrees that it will at all times reserve and set
apart and have, free from preemptive rights, a number of shares of authorized
but unissued Common Stock, or other stock or securities deliverable pursuant to
this Warrant, sufficient to enable it at any time to fulfill all its obligations
hereunder.
Section 6. NOTICES.
In the event that:
(a) the Company proposes to pay any dividend payable in stock (of
any class or classes) or any obligations or stock convertible into or
exchangeable for shares of Common Stock upon its Common Stock or make any
distribution (other than ordinary cash dividends) to the holders of its
Common Stock,
(b) the Company proposes to grant to the holders of its Common
Stock generally any rights or Warrants (excluding any Warrants granted to
any employee, director, officer, contractor or consultant of the Company
pursuant to any plan approved by the Board of Directors of the Company),
(c) the Company proposes to effect any capital reorganization or
reclassification of capital stock of the Company,
(d) the Company proposes to consolidate with, or merge into, any
other Company or to transfer its property as an entirety or substantially
as an entirety, or
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(e) the Company proposes to effect the liquidation, dissolution or
winding up of the Company,
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
stock 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 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 Stock issued pursuant to
this Warrant shall be delivered by facsimile, reliable courier or first-class
mail postage prepaid to Holder at Holder's address as the same appears on the
stock 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
such Warrants and the holders of record of such Common Stock.
Section 7. LIMITATION OF LIABILITY; NOT SHAREHOLDERS.
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 shareholder in respect of meetings of shareholders for the election
of directors of the Company or any other matter whatsoever as shareholders of
the Company. No provision hereof, in the absence of affirmative action by the
Holder to purchase shares of Common Stock, 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 shareholder of the Company, whether such
liability is asserted by the Company, creditors of the Company or others.
Section 8. LOSS, DESTRUCTION, ETC., OF WARRANT.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of any 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 Company, or in the event of
such mutilation upon surrender and cancellation of such 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 8 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.
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Section 9. REGISTRATION RIGHTS.
As used in this Section 9, the term "Registrable Stock" shall mean (i)
all shares of Common Stock that may be issued upon exercise of this Warrant (and
all shares of 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 Stock are set forth in a Registration Rights Agreement, dated
December 11, 1997, 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 Stock.
Section 10. 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
Xxxx Warrants that are exercisable for a number of shares of Common Stock that
represent in the aggregate at least a majority of the total number of shares of
Common Stock for which all of the Xxxx Warrants are then exercisable (whether or
not the holder of this Warrant consents).
Section 11. GOVERNING LAW AND CONSENT TO JURISDICTION.
This Warrant shall be governed by the laws of the State of New York without
regard to 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.
11
12
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its
name by its duly authorized officer.
Dated: December , 1997
CALI REALTY CORPORATION
By:
----------------------------
Name:
Title:
13
EXERCISE NOTICE
The undersigned, the Holder, hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder, ____________ shares
of the Common Stock covered by such Warrant and herewith makes payment in full
therefor of $_________ cash and/or by cancellation of $__________ of
indebtedness of the Company to the Holder hereof and requests that, subject to
the terms and conditions of the Warrant, certificates for such shares (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 Stock issued upon this exercise, the
undersigned is acquiring such Common Stock 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 Stock 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 COMPANY,
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 Stock issued upon this exercise,
stop transfer instructions will be entered on the Company's stock transfer
records with respect to Common Stock issued upon this exercise.
Dated: ------------------------------
Signature guaranteed:
