EXHIBIT 1.2
FORM OF
WARRANT PURCHASE AGREEMENT
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
WARRANT PURCHASE AGREEMENT
__________, 2002
This Warrant Purchase Agreement (the "Agreement") is made by and between
▇▇▇▇▇ Real Estate Investment Trust, Inc., a Maryland corporation (the
"Company"), and ▇▇▇▇▇ Investment Securities, Inc. (the "Warrantholder").
The Company hereby agrees to issue and sell, and the Warrantholder agrees
to purchase, for the total purchase price of $10,560, warrants as hereinafter
described (the "Soliciting Dealer Warrants") to purchase up to an aggregate of
13,200,000 Shares (subject to adjustment pursuant to Section 8 hereof) of the
Company's common stock, $.01 par value (the "Shares"). The Soliciting Dealer
Warrants are being purchased in connection with a public offering of an
aggregate of 330,000,000 Shares (the "Offering"), pursuant to that certain
Dealer Manager Agreement (the "Dealer Manager Agreement"), dated _________, 2002
between the Company and the Warrantholder as the Dealer Manager and a
representative of the Soliciting Dealers who may receive warrants.
The issuance of the Soliciting Dealer Warrants shall be made in book-entry
form only (until such time as the Company begins issuing certificates evidencing
its Soliciting Dealer Warrants which shall be no later than such time as the
Company begins issuing certificates for its Shares) on a quarterly basis
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 registered on
the books of the Company (and upon issuance of certificates evidencing such
Soliciting Dealer Warrants, shall be numbered) when issued.
(B) FORM OF SOLICITING DEALER WARRANTS. The text and form of the
Soliciting Dealer Warrant 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 WARRANTS. The Soliciting
Dealer Warrants shall not be sold, transferred, assigned, exchanged or
hypothecated by the Warrantholder for a period of one year following the
effective date of the offering of the Company's shares of common stock, except
to: (i) one or more persons, each of whom on the date of transfer is an officer
and director or partner of a Warrantholder or an officer and director or partner
of a successor to a 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
an officer and director of a Warrantholder or an officer and director or partner
of a successor to a Warrantholder; (iii) broker-dealer firms which have
executed, and are not then in default of, the Soliciting Dealer Agreement
regarding the Offering (the "Selling Group") and one or more persons, each of
whom on the date of transfer is an officer and director or partner of a member
of the Selling Group or an officer and director or partner of a successor to a
member of the Selling Group; (iv) a successor to a Warrantholder or a successor
to a member of the Selling Group through merger or consolidation; (v) a
purchaser of all or substantially all of a Warrantholder's or Selling Group
members' assets; or (vi) by will, pursuant to the laws of descent and
distribution, or by operation of law; provided, however, that any securities
transferred pursuant to clauses (i) through (vi) of this subsection (D) shall
remain subject to the transfer restrictions specified herein for the remainder
of the initially applicable one year time period. The 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.
Unless the context indicates otherwise, the term "Warrantholder" shall
include any transferee of the Soliciting Dealer Warrant pursuant to this
Subsection (D), 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 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
Dealer Warrant certificate 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 exchanged. Thereupon, the Company shall
execute and deliver to the person entitled thereto a new Soliciting Dealer
Warrant certificate as so requested.
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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 cancelled.
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 public offering price per Share) during the time
period beginning one year from the effective date of the Offering and ending on
the date five years after the effective date of the Offering (the "Exercise
Period"), or if any such date is a day on which banking institutions 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 Atlanta, Georgia 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 exercised together with all taxes applicable upon such exercise. Payment of
the aggregate Warrant Price 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 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 Articles of Incorporation, as amended. 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 during the Exercise Period, 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 completion of the Exercise Period, a new
certificate evidencing the remaining Soliciting Dealer Warrants shall be issued
by the Company.
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(D) SHARE ISSUANCE UPON EXERCISE. Upon such surrender of the Soliciting
Dealer Warrant certificate and payment of such Warrant Price as aforesaid, 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 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 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 Warrant remains outstanding, out of its
authorized Common Stock, such number of Shares as shall be subject to purchase
under the Soliciting Dealer Warrant.
5. LEGEND ON SOLICITING DEALER WARRANT SHARES.
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.
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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.
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 Warrant or the Shares.
7. WARRANT PRICE.
The price per Share at which Shares shall be purchasable on the exercise of
the Soliciting Dealer Warrant shall be $12 (the "Warrant Price").
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 upon the happening of certain events, as follows:
(a) In case the Company shall: (i) pay a dividend in Common Stock or make
a distribution in Common Stock; (ii) subdivide its outstanding Common Stock;
(iii) combine its outstanding Common Stock into a smaller number of shares of
Common Stock, or (iv) issue by reclassification of its Common Stock other
securities of the Company, 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.
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(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 "Common Stock" shall mean:
(i) the class of stock designated as the Common Stock of the Company at the date
of this Agreement; or (ii) any other class of stock resulting from successive
changes or reclassification of such Common Stock 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 the Company other than Common Stock, thereafter the number of such other
shares so purchasable upon the exercise of the Soliciting Dealer Warrant 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 Warrant 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 Warrant 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 Common Stock 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 Common Stock by
way of dividend or other distribution, or of a subdivision or combination of the
Common Stock), 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 Common Stock of the Company) as a result of which the
holders of the Company's Common Stock 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
for 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 shares of Common Stock of the Company,
consolidation, merger, sale or conveyance had the Soliciting Dealer Warrant been
exercised immediately prior to such action.
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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 Common Stock 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 Warrant or
upon the exercise of the Soliciting Dealer Warrant.
(h) No adjustments shall be made in connection with the public sale and
issuance of the Shares pursuant to the Dealer Manager Agreement or the sale or
issuance of Shares upon the exercise of the Soliciting Dealer Warrant.
(i) Irrespective of any adjustments in the Warrant Price 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 Warrant. If any such fractional Share
would, except for the provisions of this Section 9, be issuable upon the
exercise of the Soliciting Dealer Warrant (or specified portion thereof), the
Company may, at its election, pay an amount in cash equal to the then current
market price multiplied by such fraction. For purposes of this Agreement, the
term "current market price" shall mean: (a) if the Shares are traded in the
over-the-counter market and not on the NASDAQ National Market ("NNM") or on any
national securities exchange, the average between the per share closing bid and
asked prices of the Shares for the 30 consecutive trading days immediately
preceding the date in questions, as reported by the NNM or an equivalent
generally accepted reporting service; or (b) if the Shares are traded on the NNM
or on a national securities exchange, the average for the 30 consecutive trading
days immediately preceding the date in question of the daily per share closing
prices of the Shares on the NNM or on the principal national stock exchange on
which it is listed, as the case may be. The closing price referred to in clause
(b) above shall be the last reported sales price or, in case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices on the NNM or on the principal national securities exchange on which the
Shares are then listed, as the case may be. If the Shares are not publicly
traded, then the "current market price" shall mean $10 for the first three years
following the termination of the Offering.
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, consent 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.
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11. REGISTRATION OF SOLICITING DEALER WARRANTS AND SHARES PURCHASABLE
THEREUNDER.
The Shares purchasable under the Soliciting Dealer Warrants are being
registered as part of the Offering. The Company undertakes to make additional
filings with the Commission to the extent required to keep the Shares registered
through the Exercise Period.
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:
▇▇▇▇▇ Investment Securities, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇, III
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(b) If to the Company, addressed to:
▇▇▇▇▇ Real Estate Investment Trust, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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 or
corporation 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 an 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 and entities specified in Section 1,
Subsection (D) thereof, 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
corporation or sell all or substantially all of its property to another
corporation, unless it complies with the provisions of Section 8, Subsection (f)
thereof.
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.
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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 Georgia, including all
matters of construction, validity, performance and enforcement, and without
giving effect to the principles of conflict of laws; provided, however, that
causes of action for violations of federal or state securities laws shall not be
governed by this Section.
20. JURISDICTION.
The parties submit to the jurisdiction of the Courts of the State of
Georgia or a Federal Court impaneled in the State of Georgia 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.
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IN WITNESS WHEREOF, the parties have caused this Warrant Purchase Agreement
to be duly executed as of __________, 2002.
▇▇▇▇▇ Real Estate Investment Trust, Inc.
By: ____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
▇▇▇▇▇ Investment Securities, Inc.
By: ____________________________________
▇▇▇ ▇. ▇▇▇▇▇, III
President
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EXHIBIT A
▇▇▇▇▇ REAL ESTATE INVESTMENT 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 __________, 2002, A COPY OF WHICH IS AVAILABLE FROM THE ISSUER.
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
Exercisable commencing on __________, 2003
Void after 5:00 P.M. Eastern Standard Time on __________, 2007 (the
"Exercise Closing Date").
THIS CERTIFIES that, for value received, _____________________________ (the
"Warrantholder"), or registered assign, is entitled, subject to the terms and
conditions set forth in this Warrant (the "Warrant"), to purchase from ▇▇▇▇▇
Real Estate Investment Trust, Inc., a Maryland corporation (the "Company" and
the "Issuer"), such number of fully paid and nonassessable Shares of common
stock of the Company (the "Shares") as is reflected on the books of the Company
at any time during the period commencing on __________, 2003 and continuing up
to 5:00 P.M. eastern standard time on __________, 2007, at $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 ▇▇▇▇▇ Investment
Securities, Inc. and the Company dated __________, 2002.
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 as a Stockholder of the Company.
▇▇▇▇▇ Real Estate Investment Trust, Inc.
By: _____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
EXHIBIT B
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
ELECTION TO PURCHASE
SOLICITING DEALER WARRANT
▇▇▇▇▇ Real Estate Investment Trust, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Soliciting Dealer Warrant (the "Warrant") to
purchase thereunder _______ shares of the common stock of ▇▇▇▇▇ Real Estate
Investment Trust, Inc. (the "Shares") pursuant to the terms and provisions of
the attached Warrant and hereby tenders $______________ ($12.00 per Share) 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 TIN of Stockholder below)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
and, if said number of Shares shall not be the total possible number of Shares
purchasable pursuant to the attached Warrant, 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 stated below:
Dated: ___________________, 200_
Name of Warrantholder or Assignee: _____________________________________________
(Please Print)
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
EXHIBIT C
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
SOLICITING DEALER WARRANT
ASSIGNMENT
(To be signed only upon assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, transfers and
conveys unto: __________________________________________________________________
(Please Print Name, Address and SSN or TIN of Assignee Below)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
the attached Soliciting Dealer Warrant No. ____ (the "Warrant"), to purchase
Shares of common stock of ▇▇▇▇▇ Real Estate Investment 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: ______________, 200_
________________________________________
Signature of Registered Holder
________________________________________
Name of Registered Holder - Please Print
Signature Guaranteed:
__________________________
Note: The above signature must
correspond with the name 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 previously been duly
assigned.
