Exhibit 10.106
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 Xxxxxxxx X. 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"),
Three Hundred and Thirty-Nine Thousand Nine Hundred and Seventy-Six (339,976)
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 "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 on
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 Company 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
Company 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 Company 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
Company shall terminate because of his death or due to Disability
(as defined below), the vesting of all Warrants which the Holder
shall not then have been entitled to exercise shall be accelerated
on the date of his death or the termination of his employment due
to Disability, as the case may be. If a Holder's employment with
the Company shall terminate because of his death or 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, as the
case may be (including, without limitation, by acceleration or
otherwise) by the Holder, 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 earlier of the
Expiration Date or one year after the Holder's death or termination
of employment due to Disability, as the case may be.
(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 vesting of all Warrants which
the Holder shall not then have been entitled to exercise shall be
accelerated on the date of the termination of his employment. If a
Holder's employment with the Company 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
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Expiration Date or one year after the Holder's termination of
employment, whichever date is earlier.
"Good Reason" shall mean (A) the occurrence of any material
breach of Holder's Employment Agreement with the Company dated
December 11, 1997 (the "Employment Agreement") by the Company which
shall include but not be limited to; an assignment to the Holder of
duties materially and adversely inconsistent with or adverse
alteration in the nature of or diminution in Holder's duties and/or
responsibilities as contemplated by his Employment Agreement, (B) a
reduction in the Holder's Annual Base Salary (as defined in the
Holder's Employment Agreement) or a material reduction in benefits
(except for bonuses or similar discretionary payments) as in effect
at the time in question, a failure to pay such amounts when due or
any other failure by the Company to comply with Paragraph 4 of the
Employment Agreement, (C) at the option of the Holder within six
(6) months following the date a Notice of Non-Renewal (as defined
in the Holder's Employment Agreement) is issued by the Company
pursuant to Paragraph 2 of the Employment Agreement, (D) at the
option of the Holder within six (6) months following a Change in
Control (as defined in the Holder's Employment Agreement) in
accordance with the provisions set forth in sub-paragraph 5(a)(vii)
of the Employment Agreement, (E) any purported termination of the
Holder's employment for Cause which is not effected pursuant to the
procedures of sub-paragraph 5(a)(i) of the Employment Agreement,
(F) at the option of the Holder upon relocation of the Company's
principal executive offices or Holder's own office location to a
location more than thirty (30) miles away from Cranford, New
Jersey, or (G) failure of Holder to be appointed or reappointed as
a member of the Company's Board of Directors.
(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 Company 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,
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(irrespective of any vesting or waiting periods) of (I)
Common Stock or any class of stock convertible into
Common Stock and/or (II) common limited partnership units
of the Partnership (the "Common OP Units") or preferred
units or any other class of units convertible into Common
OP Units, in an amount equal to twenty (20%) percent or
more of the sum total of the Common Stock and the Common
OP Units (treating all classes of outstanding stock,
units or other securities convertible into stock units as
if they were converted into Common Stock or Common OP
Units as the case may be and then treating Common Stock
and Common OP Units as if they were a single class)
issued and outstanding immediately prior to such
acquisition as if they were a single class and
disregarding any equity raise in connection with the
financing of such transaction;
(ii) any Common Stock is purchased pursuant to a
tender or exchange offer other than an offer by the
Company;
(iii) the dissolution or liquidation of the
Company or the consummation of any merger or
consolidation of the Company or any sale or other
disposition of all or substantially all of its assets, if
the shareholders of the Company and unitholders of the
Partnership taken as a whole and considered as one class
immediately before such transaction own, immediately
after consummation of such transaction, equity securities
and partnership units possessing less than fifty (50%)
percent of the surviving or acquiring company and
partnership taken as a whole; or
(iv) a turnover, during any two (2) year period, of
the majority of the members of the Board of Directors,
without the consent of the remaining members of the Board
of Directors as to the appointment of the new members of
the Board of Directors.
"Disability" means the determination by the Company, 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 the 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 Company 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
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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 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
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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 OR WITHOUT GOOD REASON. Notwithstanding
anything herein contained to the contrary, if a Holder's employment is
terminated for Cause or without Good Reason, 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 use best efforts to
substantially perform his duties under his Employment Agreement with the
Company, (other than any such failure resulting from the Holder's incapacity
due to physical or mental illness) for a period of thirty (30) days after
written demand for substantial performance is delivered by the Company
specifically identifying the manner in which the Company believes the Holder
has not substantially performed his duties, (2) willful misconduct and/or
willful violation of Paragraph 11 of the Employment Agreement by the Holder
which is materially economically injurious to the Company and the Partnership
taken as a whole, (3) the willful violation by the Holder of the covenant not
to compete described in Paragraph 13 of the Employment Agreement, or (4)
conviction of, or plea of guilty to a felony. 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 (i) not in good faith
and (ii) without reasonable belief that his action or omission was in
furtherance of the interests of the Company.
(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
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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
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
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
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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 construed 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.
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In the event that:
(a) the Company proposes to pay any dividend payable in (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
(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
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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.
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
11
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.
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:
12
EXERCISE NOTIC
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:
