THIS WARRANT
AND THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS. NEITHER THIS
WARRANT NOR THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE
OF THIS WARRANT MAY BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED.
VOID AFTER 5:00 P.M., EASTERN
DAYLIGHT TIME
Date of
Issuance: August 11,
2004 Certificate
No. W-1
FOR VALUE
RECEIVED, BioMed Realty Trust, Inc., a Maryland corporation (the
“Company”), hereby grants to Raymond James &
Associates, Inc. or its registered assigns (the “Registered
Holder”) the right to purchase from the Company Two Hundred
Seventy Thousand (270,000) shares of the Company’s Common
Stock, $0.01 par value per share (“Warrant Stock” or
“Warrant Shares”) at a price per share of $15.00 (as
adjusted from time to time hereunder, the “Exercise
Price”). Certain capitalized terms used herein are defined in
Section 6 hereof. The amount and kind of securities obtainable
pursuant to the rights granted hereunder and the purchase price for
such securities are subject to adjustment pursuant to the
provisions contained in this Warrant.
This Warrant is
subject to the following provisions:
Section 1.
Exercise of Warrant.
1A. Exercise
Period . The Registered Holder may exercise, in whole or in
part, the purchase rights represented by this Warrant at any time
and from time to time after the Date of Issuance to and including
the date of the five (5) year anniversary of the effective
date of the public offering or private placement of the securities
for which Raymond James & Associates, Inc.’s services
were utilized by the Company (the “Exercise
Period”).
(i)
Method of Exercise . The Warrant evidenced hereby may be
exercised by the Registered Holder, in whole or in part, by the
delivery at the principal office of the Company (or at such other
office or agency of the Company as it may designate by notice in
writing to the Registered Holder), during normal business hours, of
this Warrant and the Exercise Agreement (in the form attached
hereto as Exhibit I), duly completed and executed, and payment
of the Purchase Price (as such term is defined in
Section 1B(x) below) in cash, by wire transfer of immediately
available United States federal funds or by bank certified,
treasurer’s or cashier’s check payable to the order of
the Company. Upon delivery of the Exercise Agreement, this Warrant
and the Purchase Price, the Company shall deliver to the Registered
Holder that number of Warrant Shares which is equal to the Purchase
Price divided by the Exercise Price, as may be adjusted from time
to time.
(ii)
Cashless Exercise . In lieu of exercising the Warrant
evidenced hereby pursuant to Section 1B(i) above, the
Registered Holder shall have the right during the Exercise Period
to exercise this Warrant, in whole or in part, by surrendering this
Warrant to the Company accompanied by the Form of Cashless Exercise
(in the form attached hereto as Exhibit II), duly completed
and executed. Upon delivery of the Form of Cashless Exercise and
this Warrant, the Company shall deliver to the Registered Holder
(without payment by the Registered Holder of any cash in respect of
the Purchase Price) that number of Warrant Shares which is equal to
the amount obtained by dividing (x) an amount equal to the
difference between (1) the aggregate Market Price for the
Warrant Shares as to which the Cashless Exercise Right is then
being exercised (the “Cashless Exercise Shares”),
determined as of immediately prior to the effective time of the
exercise of the Cashless Exercise Right, minus (2) the
aggregate Exercise Price then applicable to the Cashless Exercise
Shares (such difference, the “Cashless Exercise
Amount”), by (y) the Market Price of one share of Common
Stock determined as of the close of trading immediately prior to
the effective time of the exercise of the Cashless Exercise right.
Upon exercise of the Cashless Exercise right, the Cashless Exercise
Amount shall be deemed to have been paid to the Company in respect
of the Warrant Shares so acquired. Any references in this Warrant
to the “exercise” of this Warrant, and the use of the
term “exercise” herein, shall be deemed to include,
without limitation, any exercise of the Cashless Exercise
right.
(iii) Certificates
for shares of Warrant Stock purchased upon exercise of this Warrant
shall be delivered by the Company to the Registered Holder as soon
as practicable after surrender of the Warrant and either
(a) payment of the Purchase Price and delivery of the Exercise
Agreement or (b) delivery of the Form of Cashless
Exercise
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to the Company,
and in any event within ten (10) business days after such
surrender, payment and delivery to the Company in the manner
described above. Unless this Warrant has expired or all of the
purchase rights represented hereby have been exercised, the Company
shall prepare a new Warrant, substantially identical hereto, in the
name of Registered Holder, representing the rights formerly
represented by this Warrant which have not expired or been
exercised and shall, as soon as practicable, deliver such new
Warrant to the Registered Holder or to such Person as the
Registered Holder has designated for delivery.
(iv) The
Warrant Stock issuable upon the exercise of this Warrant shall be
deemed to have been issued to the Registered Holder as of the close
of business on the date on which this Warrant shall have been
surrendered to the Company and delivery of (1) the Purchase
Price and Exercise Agreement or (2) Form of Cashless Exercise
has been made to the Company, and the Registered Holder shall be
deemed for all purposes to have become the record holder of such
Warrant Stock on that date.
(v) The
issuance of certificates for shares of Warrant Stock upon exercise
of this Warrant shall be made without charge to the Registered
Holder with respect to any issuance tax or other cost incurred by
the Company in connection with such exercise and the related
issuance of shares of Warrant Stock provided, however, that the
Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of
any certificates in a name other than that of the then Registered
Holder of the Warrant being exercised. Each share of Warrant Stock
issuable upon exercise of this Warrant shall, upon payment of the
Exercise Price, be duly authorized, validly issued, fully paid and
nonassessable and free from all liens and charges with respect to
the issuance thereof.
(vi) The
Company shall not close its books against the transfer of this
Warrant or of any share of Warrant Stock issued or issuable upon
the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant in accordance with its terms.
The Company shall from time to time take all such action as may be
necessary to insure that the par value per share of the unissued
Warrant Stock acquirable upon exercise of this Warrant is at all
times equal to or less than the Exercise Price then in
effect.
(vii) The
Company shall assist and cooperate with any Registered Holder
required to make any governmental filings or obtain any
governmental approvals prior to, or in connection with, the
exercise of this Warrant, at the Registered Holder’s
expense.
(viii) The
Company shall at all times reserve and keep available out of its
authorized but unissued shares of Warrant Stock, solely for the
purpose of issuance upon the exercise of the Warrants, at least
such number of shares of Warrant Stock issuable upon the exercise
in full of all outstanding Warrants. The Company shall take all
such actions as may be necessary to insure that all such shares of
Warrant Stock may be so issued without violation of any applicable
law or governmental regulation or any
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requirements of
any domestic securities exchange upon which shares of Warrant Stock
may be listed (except for official notice of issuance which shall
be promptly delivered by the Company upon each such issuance). The
Company shall not take any action which would cause the number of
authorized but unissued shares of Warrant Stock to be less than the
number of such shares required to be reserved hereunder for
issuance upon exercise of the Warrants.
(ix) If
the shares of Warrant Stock issuable by reason of exercise of this
Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the Registered
Holder’s option and upon surrender of this Warrant by such
holder as provided above, together with any notice, statement or
payment required to effect such conversion or exchange of Warrant
Stock, deliver to such holder (or such other Person specified by
such holder) a certificate or certificates representing the stock
or securities into which the shares of Warrant Stock issuable by
reason of such conversion are convertible or exchangeable,
registered in such name or names and in such denomination or
denominations as such holder has specified.
(x) Purchase
Price. The Purchase Price shall be the amount equal to the product
of the Exercise Price multiplied by the number of shares of Warrant
Stock being purchased upon such exercise.
1C. Fractional
Shares . If a fractional share of Warrant Stock would be
issuable upon exercise of the rights represented by this Warrant,
the Company shall, as soon as practicable after the date of
exercise, deliver to the Registered Holder a check payable to the
Registered Holder, in lieu of such fractional share, in an amount
equal to the difference between (x) the Market Price of such
fractional share as of the close of trading immediately prior to
the effective time of the exercise and (y) the Exercise Price
of such fractional share.
Section 2.
Adjustment of Exercise Price and Number of Shares . In order
to prevent dilution of the rights granted under this Warrant, the
Exercise Price shall be subject to adjustment from time to time as
provided in this Section 2, and the number of shares of
Warrant Stock obtainable upon exercise of this Warrant shall be
subject to adjustment from time to time as provided in this
Section 2.
2A. Adjustments
of Number of Shares/Price . If the Company shall
(i) declare a dividend on the Common Stock in shares of its
capital stock (whether shares of Common Stock or of capital stock
of any other class), (ii) split or subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares, or (iv) issue
by reclassification of its shares of Common Stock any shares of
capital stock or other securities of the Company, then, in each
such event, the number of shares of Common Stock purchasable upon
exercise of this Warrant immediately prior to the record date or
effective date thereof, shall be adjusted so that the holder of
this Warrant shall be entitled to receive, upon the exercise of
this Warrant, the aggregate number and kind of shares of Warrant
Stock or other securities which it would have owned or have been
entitled to receive after the
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occurrence of
any of the events described above, had such Warrant been exercised
immediately prior to the occurrence of such event (or any record
date or effective date with respect thereto). Such adjustment shall
be made successively whenever any of the events listed above shall
occur. An adjustment made pursuant to this Section 2A shall
become effective immediately after the effective date of the event
retroactive to the record date, if any, for such event. Whenever
the number of shares of Warrant Stock purchasable upon the exercise
of this Warrant is adjusted pursuant to this Section 2A, the
Exercise Price per share of Warrant Stock payable upon exercise of
this Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of shares of Warrant Stock purchasable
upon the exercise of this Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of
shares of Warrant Stock purchasable immediately after such
adjustment.
2B. Subdivision
or Combination of Common Stock . If the Company at any time
subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision shall be proportionately
reduced and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant shall be proportionately increased. If the
Company at any time combines (by reverse stock split or otherwise)
one or more classes of its outstanding shares of Common Stock into
a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately
increased and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant shall be proportionately
decreased.
2C.
Reorganization, Reclassification, Consolidation, Merger or
Sale . Any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the
Company’s assets or other transaction, which in each case is
effected in such a way that the holders of Common Stock are
entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in
exchange for Common Stock is referred to herein as an
“Organic Change.” Prior to the consummation of any
Organic Change, the Company shall make appropriate provision to
insure that each of the Registered Holders of the Warrants shall
thereafter have the right to acquire and receive, in lieu of or in
addition to (as the case may be) the shares of Warrant Stock
immediately theretofore acquirable and receivable upon the exercise
of such holder’s Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange
for the number of shares of Warrant Stock immediately theretofore
acquirable and receivable upon exercise of such holder’s
Warrant had such Organic Change not taken place. In any such case,
the Company shall make appropriate provision with respect to such
holders’ rights and interests to insure that the provisions
of this Section 2 and Sections 1, 3 and 4 hereof shall
thereafter be applicable to the Warrants. The Company shall not
effect any such consolidation, merger or sale, unless prior to the
consummation thereof, the successor entity (if other than the
Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument, the
obligation to deliver to each such holder such shares
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of stock,
securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
2D. Certain
Events . If any event occurs of the type contemplated by the
provisions of this Section 2, but not expressly provided for
by such provisions, then the Company’s Board of Directors
shall make an appropriate adjustment in the Exercise Price and the
number of shares of Warrant Stock obtainable upon exercise of this
Warrant so as to protect the rights of the holders of the Warrants;
provided that no such adjustment shall increase the Exercise Price
or decrease the number of shares of Warrant Stock obtainable as
otherwise determined pursuant to this Section 2.
(i) Immediately
upon any adjustment of Exercise Price, the Company shall give
written notice thereof to the Registered Holder, setting forth in
reasonable detail and certifying the calculation of such
adjustment.
(ii) The
Company shall give written notice to the Registered Holder at least
twenty (20) days prior to the date on which the Company closes
its books or takes a record (x) with respect to any dividend
or distribution upon the Common Stock, (y) with respect to any
pro rata subscription offer to holders of Common Stock, or
(z) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The
Company also shall give written notice to the Registered Holder at
least twenty (20) days prior to the date on which any Organic
Change, dissolution or liquidation shall take place.
Section 3.
Liquidating Dividends. If the Company declares or pays a
dividend upon the Common Stock that is payable otherwise than in
cash out of earnings or earned surplus (determined in accordance
with generally accepted accounting principles, consistently
applied) (except for a stock dividend payable in shares of Common
Stock) (a “Liquidating Dividend”), then the Company
shall pay to the Registered Holder of this Warrant at the time of
payment thereof the Liquidating Dividend which would have been paid
to such Registered Holder on the Warrant Stock had this Warrant
been fully exercised immediately prior to the date on which a
record is taken for such Liquidating Dividend, or, if no record is
taken, the date as of which the record holders of Common Stock
entitled to such dividends are to be determined.
Section 4.
Purchase Rights . If at any time the Company grants, issues
or sells any Options, Convertible Securities or rights to purchase
stock, warrants, securities or other property pro rata to the
record holders of any class of Common Stock (the “Purchase
Rights”), then the Registered Holder of this Warrant shall be
entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have
acquired if such holder had held the number of shares of Warrant
Stock acquirable upon complete exercise of this Warrant immediately
before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no
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such record is
taken, the date as of which the record holders of Common Stock are
to be determined for the grant, issue or sale of such Purchase
Rights.
Section 5.
Registration Rights .
5A. Piggyback
Registration Rights . If at any
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