Adjustments to Exercise Price; Number of Rights. The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3. (a) In the event the Trust shall at any time after the date of this Agreement, (i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan; (ii) subdivide or change the outstanding Units into a greater number of Units; (iii) combine or change the outstanding Units into a smaller number of Units; or (iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of, in lieu of or in exchange for existing Units except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted: (v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and (vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following the payment or effective date of the event referred to in clause 2.3(a)(i), (ii), (iii) or (iv), as the case may be. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment. (b) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Units entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Units (or securities convertible into or exchangeable for or carrying a right to purchase Units) at a price per Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per Unit) less than the Market Price per Unit on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Units outstanding on such record date, plus the number of Units that the aggregate offering price of the total number of Units so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Unit, and the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Units (or securities convertible into or exchangeable or exercisable for Units) actually issued upon the exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any Distribution Reinvestment Plan or Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall be deemed not to constitute an issue of rights, options or warrants by the Trust; provided, however, that, in all such cases, the right to purchase Units is at a price per Unit of not less than 90% of the current Market Price per Unit (determined as provided in such plans) of the Units. (c) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for a distribution to all holders of Units of evidences of indebtedness, assets (other than cash and other than a regular periodic cash distribution or a distribution paid in Units on the liquidation of the Trust), rights, options or warrants (excluding those referred to in subsection 2.3(b) hereof), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Market Price per Unit on such record date, less the fair market value (as determined in good faith by the Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per Unit basis, of the portion of the assets or evidences of indebtedness so to be distributed and the denominator of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed. (d) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(d) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Unit. Notwithstanding the first sentence of this subsection 2.3(d), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii) the Expiration Date. (e) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(i) or (iv) above, if the Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Trustees may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a), (b) and (c) above, shall be made. Subject to subsections 5.4(b) and (c) and subject to the approval of the stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustments. (f) Each Right originally issued by the Trust subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein. (g) Irrespective of any adjustment or change in the Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder. (h) In any case in which this Section 2.3 shall require that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Trust may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Units and other securities of the Trust, if any, issuable upon such exercise over and above the number of Units and other securities of the Trust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Trust shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Units (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment. (i) Notwithstanding anything in this Section 2.3 to the contrary, the Trust shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Trustees shall determine to be advisable in order that any (i) consolidation or subdivision of the Units, (ii) issuance (wholly or in part for cash) of Units or securities that by their terms are convertible into or exchangeable for Units, (iii) Unit distributions, or (iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Trust to holders of its Units, shall not be taxable to such Unitholders.
Appears in 1 contract
Samples: Unitholders Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights.
(a) The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(ab) In the event the Trust shall at any time after the date of this AgreementAgreement and prior to the Expiration Time,
(i) make or declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) other than pursuant to any Distribution Reinvestment Plan;
(ii) subdivide or change the outstanding Units into a greater number of Units;
(iii) combine or change the outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the Trust) in respect of, of in lieu of or in exchange for existing Units except as otherwise provided in this Section 2.3, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. , provided, however, that there shall be no adjustment made in the case of additional Units issued in lieu of cash distributions pursuant to the Trust’s fourth amended and restated declaration of trust dated August 2, 2012, as may be amended or supplemented from time to time.
(c) If the Exercise Price and number of Rights outstanding are to be adjusted:
(vi) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units (the “Expansion Factor”) that a holder of one Unit immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof; and
(viii) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following the payment or effective date of the event referred to in clause 2.3(a)(iClause 2.3(b)(i), (ii), (iii) or (iv), as the case may be. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. thereof If after the Record Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(iClauses 2.3(h)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment.
(bd) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Units entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Units (or securities convertible into or exchangeable for or carrying a right to purchase Units) at a price per Unit (or, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per Unit) less than the Market Price per Unit on such record date, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to to such record date by a fraction, the numerator of which shall be the number of Units outstanding on such record date, plus the number of Units that the aggregate offering price of the total number of Units so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Unit, and the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). .
(e) In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Units (or securities convertible into or exchangeable or exercisable for Units) actually issued upon the exercise of such rights, options or warrants, as the case may be. .
(f) For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any Distribution Reinvestment Plan or Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall be deemed not to constitute an issue of rights, options or warrants by the Trust; provided, however, that, in all such cases, the right to purchase Units is at a price per Unit of not less than 9095% of the current Market Price per Unit (determined as provided in such plans) of the Units.
(cg) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for a distribution to all holders of Units of evidences of indebtedness, assets (other than cash and other than a regular periodic cash distribution or a distribution paid in Units on the liquidation of the Trust), rights, options or warrants (excluding those referred to in subsection 2.3(bSubsection 2.3(d) hereof), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Market Price per Unit on such record date, less the fair market value (as determined in good faith by the Board of Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall shall be binding on the Rights Agent and the holders of Rights), on a per Unit basis, of the portion of the assets or evidences of indebtedness so to be distributed and the denominator of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not riot been fixed.
(dh) Notwithstanding anything herein to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(dSubsection 2.3(h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 shall be made to the nearest cent or to the nearest ten-thousandth of a Unit. Notwithstanding the first sentence of this subsection 2.3(dSubsection 2.3(h)), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii) the Expiration Date.
(ei) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(iClause 2.3(b)(i) or (iv) above, if the Board of Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(aSubsections 2.3(b), (bd) and (cg) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Board of Trustees may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(aSubsections 2.3(b), (bd) and (cg) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a2.3(b), (bd) and (cg) above, shall be made. Subject to subsections 5.4(bSubsections 5.4(c) and (cd) and subject to the approval of the each stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustments.
(fj) Each Right originally issued by the Trust subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issue, all subject to further adjustment as provided herein.
(gk) Irrespective of any adjustment or change in the Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder.
(hl) In any case in which this Section 2.3 shall require that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Trust may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Units and other securities of the Trust, if any, issuable upon such exercise over and above the number of Units and other securities of the Trust, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Trust shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional Units (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment.
(im) Notwithstanding anything in this Section 2.3 to the contrary, the Trust shall be entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Board of Trustees shall determine to be advisable in order that any
(i) consolidation or subdivision of the Units,;
(ii) issuance (wholly or in part for cash) of Units or securities that by their terms are convertible into or exchangeable for Units,;
(iii) Unit distributions, ; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3, hereafter made by the Trust to holders of its Units, shall not be taxable to such Unitholdersunitholders.
Appears in 1 contract
Samples: Unitholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. The Exercise Price, the number and kind of securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3.
(a) In If the event the Trust Corporation shall at any time after the date of this Agreement,Record Time and prior to the Expiration Time:
(i) declare or make pay a distribution dividend on its Units Common Shares payable in Units Common Shares (or other Shares of capital or securities exchangeable for or convertible into or giving a right to acquire Units Common Shares or other securities Shares of the Trustcapital) other otherwise than pursuant to any Distribution Reinvestment Planoptional share dividend program;
(ii) subdivide or change the outstanding Units Common Shares into a greater number of UnitsCommon Shares;
(iii) combine consolidate or change the outstanding Units Common Shares into a smaller number of UnitsCommon Shares; or
(iv) issue any Units Common Shares (or other shares of capital or securities exchangeable for or convertible into or giving a right to acquire Units Common Shares or other securities Shares of the Trustcapital) in respect of, in lieu of of, or in exchange for for, existing Units except as otherwise provided Common Shares in this Section 2.3a reclassification or redesignation of Common Shares, an amalgamation or statutory arrangement, the Exercise Price and the number of Rights outstanding, or, if the payment or effective date therefor therefore shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If an event occurs which would require an adjustment under both this Section 2.3 and Subsection 3.1(a), the adjustment provided for in this Section 2.3 shall be in addition to, and shall be made prior to, any adjustment required under Subsection 3.1(a). If the Exercise Price and number of Rights outstanding are to be adjusted:,
(v) the Exercise Price in effect after such adjustment will shall be equal to the Exercise Price in effect immediately prior to such adjustment divided by the number of Units Common Shares (or other Shares of capital) (the “Expansion Factor”) that a holder of one Unit Common Share immediately prior to such distributiondividend, subdivision, change, combination consolidation or issuance would hold immediately thereafter as a result thereofthereof (assuming the exercise of all such exchange or conversion rights, if any); and
(vi) each Right held prior to such adjustment will shall become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will shall be deemed to be distributed among the Units Common Shares with respect to which the original Rights were associated (if they remain outstanding) and the Units Shares issued in respect of such distributiondividend, subdivision, change, combination consolidation or issuance, so that each such Unit will Common Share (or other whole Share or security exchangeable for or convertible into a whole Share of capital) shall have exactly one Right associated with it in effect following the payment or effective date of the event referred to in clause 2.3(a)(i), (ii), (iii) or (iv), as the case may beit. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will shall be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distributiondividend, subdivision, change, combination consolidation or issuance would hold immediately thereafter as a result thereof. If To the extent that any such rights of exchange, conversion or acquisition are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect based upon the number of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights. If, after the Record Time and prior to the Expiration Time, the Trust shall issue Corporation issues any securities shares of the Trust its authorized capital other than Units Common Shares in a transaction of a type described in clauses 2.3(a)(i) or (ivthe first sentence of this Subsection 2.3(a), such securities shares shall be treated herein as nearly equivalent to Units Common Shares as may be practicable and appropriate under the circumstances and the Trust Corporation and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment.
(b) In . If the event the Trust shall Corporation, at any time after the Record Time and prior to the Separation Time, issues any Common Shares otherwise than in a transaction referred to in the preceding paragraph, each such Common Share so issued shall automatically have one new Right associated with it, which Right shall be evidenced by the certificate representing such Share.
(b) If the Corporation, at any time after the Record Time fix and prior to the Separation Time, fixes a record date for the issuance making of rights, options or warrants a distribution to all or substantially all holders of Units Common Shares of rights or warrants entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Units Common Shares (or securities convertible into or exchangeable for or carrying a right to purchase Unitsor subscribe for Common Shares) at a price per Unit Common Share (or, if in the case of a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units Common Shares, having a conversion, exchange or exercise price, price (including the price required to be paid to purchase such convertible or exchangeable security or right right) per Unitshare) that is less than 90% of the Market Price per Unit Common Share on such record date, the Exercise Price to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying equal the Exercise Price in effect immediately prior to to such record date multiplied by a fraction, of which the numerator of which shall be the number of Units Common Shares outstanding on such record date, date plus the number of Units that Common Shares which the aggregate offering price of the total number of Units Common Shares so to be offered (and/or the aggregate initial conversion, exchange or exercise price of the convertible or exchangeable securities or rights so to be offered, offered (including the price required to be paid to purchase such convertible or exchangeable securities or rights)) would purchase at such Market Price per Unit, and of which the denominator of which shall be the number of Units shares of Common Shares outstanding on such record date, date plus the number of additional Units Common Shares to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration, in a consideration part or all of which may be is in a form other than cash, the value of such consideration shall be as determined in good faith by the Trustees, whose determination shall be described in a statement filed with Board. To the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixed, and in the event extent that any such rights or warrants are not so issued or or, if issued, are not exercised prior to the expiration thereof, the Exercise Price shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, fixed or to the Exercise Price which would then be in effect based on upon the number of Units Common Shares (or securities convertible into or exchangeable or exercisable for UnitsCommon Shares) actually issued upon the exercise of such rights, options rights or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Units Common Shares (whether from previously unissued, treasury shares or otherwise) pursuant to any Distribution Reinvestment Plan optional dividend reinvestment plan and/or any Common Share purchase plan providing for the reinvestment of dividends payable on securities of the Corporation and/or employee stock option, stock purchase or Unit Compensation Arrangement other employee benefit plan (so long as such right to purchase is in no case evidenced by the delivery of rights or warrants) shall not be deemed not to constitute an issue of rights, options rights or warrants by the TrustCorporation; provided, provided however, that, in all such casesthe case of any dividend reinvestment plan, the right to purchase Units Common Shares is at a price per Unit share of not less than 90% of the then current Market Price market price per Unit share (determined as provided in such plansplan) of the UnitsCommon Shares.
(c) In If the event the Trust shall Corporation, at any time after the Record Time and prior to the Separation Time fix Time, fixes a record date for the making of a distribution to all holders of Units Common Shares of evidences of indebtedness, indebtedness or assets (other than cash and other than a regular periodic cash distribution Regular Periodic Cash Dividend or a distribution dividend paid in Units on the liquidation of the Trust), rights, options Common Shares) or rights or warrants (excluding those referred to in subsection Subsection 2.3(a) or 2.3(b) hereof)), the Exercise Price to shall be adjusted. The Exercise Price in effect after such record date shall be determined by multiplying shall, subject to adjustment as provided in the penultimate sentence of Subsection 2.3(b), equal the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Market Price per Unit on such record date, less the fair market value (as determined in good faith by the Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of Rights), on a per Unit basis, of the portion of the assets or assets, evidences of indebtedness indebtedness, rights or warrants so to be distributed and applicable to the denominator securities purchasable upon exercise of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixedone Right.
(d) Each adjustment made pursuant to this Section 2.3 shall be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change, consolidation or issuance in the case of an adjustment made pursuant to Subsection 2.3(a) above; and
(ii) the record date for the applicable dividend or distribution, in the case of an adjustment made pursuant to subsections 2.3(b) or (c) above.
(e) Notwithstanding anything herein to the contrary, no adjustment in to the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in the such Exercise Price; provided, provided however, that any adjustments which by reason of this subsection 2.3(dSubsection 2.3(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under Each adjustment made pursuant to this Section 2.3 shall be made calculated to the nearest cent or to the nearest one ten-thousandth of a Unit. Notwithstanding Common Share or Right, as the first sentence of this subsection 2.3(d), any adjustment required by this Section 2.3 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii) the Expiration Date.
(e) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(i) or (iv) above, if the Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Trustees case may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a), (b) and (c) above, shall be made. Subject to subsections 5.4(b) and (c) and subject to the approval of the stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustmentsbe.
(f) Each Right All Rights originally issued by the Trust Corporation subsequent to any adjustment made to the an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the number of Units Common Shares purchasable from time to time hereunder upon exercise of a Right immediately prior to such issuethe Rights, all subject to further adjustment as provided herein.
(g) Unless the Corporation has exercised its election as provided in Subsection 2.3(h), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 2.3(b) or (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Common Shares (calculated to the nearest one ten-thousandth) obtained by:
(i) multiplying (A) the number of Common Shares covered by a Right immediately prior to this adjustment, by (B) the Exercise Price in effect immediately prior to such adjustment of the Exercise Price; and
(ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price.
(h) The Corporation may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Common Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record immediately prior to such adjustment of the number of Rights shall become the number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the Exercise Price in effect immediately prior to the adjustment of the Exercise Price by the Exercise Price in effect immediately after adjustment of the Exercise Price. The Corporation shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Exercise Price is adjusted or any date thereafter, but, if the Rights Certificates have been issued, shall be at least 10 calendar days after the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Subsection 2.3(h), the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing the additional Rights to which such holder shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution or replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the Corporation, the adjusted Exercise Price and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Irrespective of any adjustment or change in the Exercise Price or the number of Units issuable securities purchasable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per Unit and the number of Units securities so purchasable which were expressed in the initial Rights Certificates issued hereunder.
(hj) If, as a result of an adjustment made pursuant to Section 3.1, the holder of any Right thereafter Exercised shall become entitled to receive any securities other than Common Shares, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as may be practicable to the provisions with respect to the Common Shares contained in the foregoing subsections of this Section 2.3 and the provisions of this Agreement with respect to the Common Shares shall apply on like terms to any such other securities.
(k) In any case in which this Section 2.3 shall require requires that any adjustment in the Exercise Price be made effective as of a record date for a specified event, the Trust Corporation may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of Units Common Shares and other securities of the TrustCorporation, if any, issuable upon such exercise over and above the number of Units Common Shares and other securities of the TrustCorporation, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, provided however, that the Trust Corporation shall deliver to such holder an a due bill or other appropriate instrument evidencing such holder’s right to receive such additional Units (fractional Common Shares or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(il) Notwithstanding anything in this Section 2.3 Whenever an adjustment to the contrary, the Trust shall be entitled to make such reductions Exercise Price or a change in the Exercise Price, in addition securities purchasable upon the exercise of Rights is made pursuant to those adjustments expressly required by this Section 2.3, as and to the extent that in their good faith judgment the Trustees Corporation shall determine to be advisable in order that anypromptly:
(i) consolidation or subdivision prepare a certificate setting forth such adjustment and a brief statement of the Units,facts accounting for such adjustment;
(ii) issuance (wholly or in part file with the Rights Agent and with each transfer agent for cash) the Common Shares, a copy of Units or securities that by their terms are convertible into or exchangeable for Units,such certificate; and
(iii) Unit distributions, or
(iv) issuance cause notice of rights, options the particulars of such adjustment or warrants referred change to in this Section 2.3, hereafter made by be given to the Trust to holders of its Unitsthe Rights. Failure to file such certificate or to cause such notice to be given as aforesaid, or any defect therein, shall not be taxable to affect the validity of any such Unitholdersadjustment or change.
Appears in 1 contract
Samples: Rights Agreement
Adjustments to Exercise Price; Number of Rights. The Exercise Price, the number and kind of Units or other securities subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(a) In the event the Trust REIT shall at any time after the date of this Agreement,
(i) Effective Time and prior to the declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) other than pursuant to any Distribution Reinvestment Plan;
(ii) distribution reinvestment plan made available by the REIT; subdivide or change the then outstanding Units into a greater number of Units;
(iii) ; combine or change the then outstanding Units into a smaller number of Units; or
(iv) or issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) in respect of, in lieu of or in exchange for for, existing Units except as otherwise provided in this Section 2.3a reclassification, the Exercise Price and amalgamation, merger, statutory arrangement or consolidation, the number of Rights outstandingUnits or other securities, oras the case may be, issuable at the time of the record date for such distribution or of the effective date of such subdivision, combination or other change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Units or other securities, as the case may be, which, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect Right had been exercised immediately prior to such adjustment divided by date and at a time when the number security transfer books of Units (the “Expansion Factor”) that a REIT were open, such holder of one Unit immediately prior would have been entitled to such distribution, subdivision, change, combination or issuance would hold thereafter receive as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following reclassification.
(b) In case the payment or effective date of the event referred to in clause 2.3(a)(i), (ii), (iii) or (iv), as the case may be. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If REIT shall at any time after the Record Effective Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment.
(b) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for or purchase Units (or securities having the same rights, privileges and preferences as Units (“equivalent securities”)) or securities convertible into UnitsConvertible Securities or exchangeable for or carrying a right to purchase Units) equivalent securities at a price per Unit or per equivalent security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per Unitapplicable) less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to to such record date by a fraction, :
(i) the numerator of which shall be the number of Units outstanding on such record date, plus the number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion, exchange or exercise conversion price of the convertible or exchangeable securities or rights securitiesConvertible Securities so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Unit, and ; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights securitiesConvertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the REIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights or warrants are not so issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Units .
(or securities convertible into or exchangeable or exercisable for Unitsc) actually issued upon the exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any Distribution Reinvestment Plan or Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced distribution reinvestment plan made available by the delivery of rights REIT, or warrants) any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the TrustREIT; provided, however, that, that in all such cases, cases the right to purchase Units is at a price per Unit of not less than 90% of the current Market Price market price per Unit (determined as provided in such plans) of the Units).
(cd) In case the event the Trust REIT shall at any time after the Record Effective Time and prior to the Separation Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtednessindebtedness or assets, assets including cash (other than cash and other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units on followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the liquidation issuance of the Trustsuch Units), rights, options or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 2.3(b3.2(b)) hereof)at a price per Unit that is less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction, :
(i) the numerator of which shall be the such Market Price per Unit on such record dateUnit, less the fair market value (as determined in good faith by the REIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall shall be binding on the Rights Agent and the holders of the Rights), on a per Unit basis, ) of the portion of the cash, assets or evidences of indebtedness so to be distributed and or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such distribution is not so made, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(de) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(d3.2(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a UnitUnit or other security, as the case may be. Notwithstanding the first sentence of this subsection 2.3(d3.2(e), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the earlier of of:
(i) three years from the date of the transaction which mandates such adjustment or adjustment; and
(ii) the Expiration Date.
(e) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(i) or (iv) above, if the Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Trustees may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a), (b) and (c) above, shall be made. Subject to subsections 5.4(b) and (c) and subject to the approval of the stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustmentsTime.
(f) Each If, as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Units, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Units contained in this section 3.2, and the provisions of this Agreement with respect to the Units shall apply on like terms to any such other securities.
(g) All Rights originally issued by the Trust REIT subsequent to any adjustment made to the an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the that number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issuethe Rights, all subject to further adjustment as provided herein.
(gh) Unless the REIT shall have exercised its election as provided in subsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 3.2(b) and 3.2(d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Units (calculated to the nearest one ten-thousandth) determined by:
(i) multiplying:
(A) the number of such Units which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(i) The REIT may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Units purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Units for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The REIT shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 3.2(i), the REIT shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the REIT, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the REIT, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the REIT, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the an Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder.
(hk) In any case in which this Section 2.3 section 3.2 shall require that any an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Trust REIT may elect to defer defer, until the occurrence of such event event, the issuance to the holder of any Right exercised after such record date of the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise over and above the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Trust REIT shall deliver to such holder an a due bill or other appropriate instrument evidencing such holder’s right to receive such additional Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(il) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Trust REIT shall be entitled to make such reductions in the each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in their its good faith judgment the REIT Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of the Units,;
(ii) issuance (wholly or in part for cash) cash of any Units or securities that by their terms are convertible into or exchangeable for Units,;
(iii) Unit distributions, distributions of additional Units to holders of Units; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Trust REIT to holders of its Units, shall not be taxable to such Unitholdersunitholders.
(m) The REIT covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.4, it will not take and not permit any Subsidiary of the REIT to take, any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section 3.2, the REIT shall, not later than the Separation Time, file with the Rights Agent a certificate specifying the particulars of such adjustment and cause notice of such adjustment to be given to the holders of the Rights. Failure to file such certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Samples: Unitholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. The Exercise Price, the number and kind of Units or other securities subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(a) In the event the Trust REIT shall at any time after the date of this Agreement,Effective Time and prior to the Expiration Time:
(i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) other than pursuant to any Distribution Reinvestment Plandistribution reinvestment plan made available by the REIT;
(ii) subdivide or change the then outstanding Units into a greater number of Units;
(iii) combine or change the then outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) in respect of, in lieu of or in exchange for for, existing Units except as otherwise provided in this Section 2.3a reclassification, the Exercise Price and amalgamation, merger, statutory arrangement or consolidation, the number of Rights outstandingUnits or other securities, oras the case may be, issuable at the time of the record date for such distribution or of the effective date of such subdivision, combination or other change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Units or other securities, as the case may be, which, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect Right had been exercised immediately prior to such adjustment divided by date and at a time when the number security transfer books of Units (the “Expansion Factor”) that a REIT were open, such holder of one Unit immediately prior would have been entitled to such distribution, subdivision, change, combination or issuance would hold thereafter receive as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following reclassification.
(b) In case the payment or effective date of the event referred to in clause 2.3(a)(i), (ii), (iii) or (iv), as the case may be. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If REIT shall at any time after the Record Effective Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment.
(b) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for or purchase Units (or securities having the same rights, privileges and preferences as Units (“equivalent securities”)) or securities convertible into Units or exchangeable for or carrying a right to purchase Units) equivalent securities at a price per Unit or per equivalent security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per Unitapplicable) less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to to such record date by a fraction, :
(i) the numerator of which shall be the number of Units outstanding on such record date, plus the number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion, exchange or exercise conversion price of the convertible or exchangeable securities or rights so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Unit, and ; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the REIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights or warrants are not so issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Units .
(or securities convertible into or exchangeable or exercisable for Unitsc) actually issued upon the exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any Distribution Reinvestment Plan or Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced distribution reinvestment plan made available by the delivery of rights REIT, or warrants) any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the TrustREIT; provided, however, that, that in all such cases, cases the right to purchase Units is at a price per Unit of not less than 90% of the current Market Price market price per Unit (determined as provided in such plans) of the Units).
(cd) In case the event the Trust REIT shall at any time after the Record Effective Time and prior to the Separation Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtednessindebtedness or assets, assets including cash (other than cash and other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units on followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the liquidation issuance of the Trustsuch Units), rights, options or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 2.3(b3.2(b)) hereof)at a price per Unit that is less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction, :
(i) the numerator of which shall be the such Market Price per Unit on such record dateUnit, less the fair market value (as determined in good faith by the REIT Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall shall be binding on the Rights Agent and the holders of the Rights), on a per Unit basis, ) of the portion of the cash, assets or evidences of indebtedness so to be distributed and or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such distribution is not so made, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(de) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(d3.2(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a UnitUnit or other security, as the case may be. Notwithstanding the first sentence of this subsection 2.3(d3.2(e), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the earlier of of:
(i) three years from the date of the transaction which mandates such adjustment or adjustment; and
(ii) the Expiration Date.
(e) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(i) or (iv) above, if the Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Trustees may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a), (b) and (c) above, shall be made. Subject to subsections 5.4(b) and (c) and subject to the approval of the stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustmentsTime.
(f) Each If, as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Units, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Units contained in this section 3.2, and the provisions of this Agreement with respect to the Units shall apply on like terms to any such other securities.
(g) All Rights originally issued by the Trust REIT subsequent to any adjustment made to the an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the that number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issuethe Rights, all subject to further adjustment as provided herein.
(gh) Unless the REIT shall have exercised its election as provided in subsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 3.2(b) and 3.2(d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Units (calculated to the nearest one ten-thousandth) determined by:
(i) multiplying:
(A) the number of such Units which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(i) The REIT may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Units purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Units for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten- thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The REIT shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 3.2(i), the REIT shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the REIT, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the REIT, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the REIT, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the an Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder.
(hk) In any case in which this Section 2.3 section 3.2 shall require that any an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Trust REIT may elect to defer defer, until the occurrence of such event event, the issuance to the holder of any Right exercised after such record date of the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise over and above the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Trust REIT shall deliver to such holder an a due xxxx or other appropriate instrument evidencing such holder’s right to receive such additional Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(il) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Trust REIT shall be entitled to make such reductions in the each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in their its good faith judgment the REIT Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of the Units,;
(ii) issuance (wholly or in part for cash) cash of any Units or securities that by their terms are convertible into or exchangeable for Units,;
(iii) Unit distributions, distributions of additional Units to holders of Units; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Trust REIT to holders of its Units, shall not be taxable to such Unitholdersunitholders.
(m) The REIT covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.4, it will not take and not permit any Subsidiary of the REIT to take, any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section 3.2, the REIT shall, not later than the Separation Time, file with the Rights Agent a certificate specifying the particulars of such adjustment and cause notice of such adjustment to be given to the holders of the Rights. Failure to file such certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Samples: Unitholder Rights Plan Agreement
Adjustments to Exercise Price; Number of Rights. The Exercise Price, the number and kind of Units or other securities subject to purchase upon the exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 2.3section 3.2.
(a) In the event the Trust REIT shall at any time after the date of this Agreement,Effective Time and prior to the Expiration Time:
(i) declare or make a distribution on its Units payable in Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) other than pursuant to any Distribution Reinvestment Plandistribution reinvestment plan made available by the REIT;
(ii) subdivide or change the then outstanding Units into a greater number of Units;
(iii) combine or change the then outstanding Units into a smaller number of Units; or
(iv) issue any Units (or other securities exchangeable for or convertible into or giving a right to acquire Units or other securities of the TrustUnits) in respect of, in lieu of or in exchange for for, existing Units except as otherwise provided in this Section 2.3a reclassification, the Exercise Price and amalgamation, merger, statutory arrangement or consolidation, the number of Rights outstandingUnits or other securities, oras the case may be, issuable at the time of the record date for such distribution or of the effective date of such subdivision, combination or other change shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the applicable Exercise Price then in effect, the aggregate number of Units or other securities, as the case may be, which, if the payment or effective date therefor shall occur after the Separation Time, the securities purchasable upon exercise of Rights shall be adjusted as of the payment or effective date in respect of such event in the manner set forth below. If the Exercise Price and number of Rights outstanding are to be adjusted:
(v) the Exercise Price in effect after such adjustment will be equal to the Exercise Price in effect Right had been exercised immediately prior to such adjustment divided by date and at a time when the number security transfer books of Units (the “Expansion Factor”) that a REIT were open, such holder of one Unit immediately prior would have been entitled to such distribution, subdivision, change, combination or issuance would hold thereafter receive as a result thereof; and
(vi) each Right held prior to such adjustment will become that number of Rights equal to the Expansion Factor, and the adjusted number of Rights will be deemed to be distributed among the Units with respect to which the original Rights were associated (if they remain outstanding) and the Units issued in respect of such distribution, subdivision, change, combination or issuance, so that each such Unit will have exactly one Right associated with it in effect following reclassification.
(b) In case the payment or effective date of the event referred to in clause 2.3(a)(i), (ii), (iii) or (iv), as the case may be. If the securities purchasable upon exercise of Rights are to be adjusted, the securities purchasable upon exercise of each Right after such adjustment will be the securities that a holder of the securities purchasable upon exercise of one Right immediately prior to such distribution, subdivision, change, combination or issuance would hold thereafter as a result thereof. If REIT shall at any time after the Record Effective Time and prior to the Expiration Time, the Trust shall issue any securities of the Trust other than Units in a transaction of a type described in clauses 2.3(a)(i) or (iv), such securities shall be treated herein as nearly equivalent to Units as may be practicable and appropriate under the circumstances and the Trust and the Rights Agent agree to amend this Agreement in order to give effect thereto, and the Trust will not consolidate with, amalgamate with or into or enter into an arrangement with, any other Person unless such Person agrees to be bound by the terms of an amendment effecting such treatment.
(b) In the event the Trust shall at any time after the Record Time and prior to the Separation Time fix a record date for the issuance of rights, options or warrants to all or substantially all holders of Units entitling them to subscribe for or purchase (for a period expiring within 45 60 calendar days after such record date) to subscribe for or purchase Units (or securities convertible into having the same rights, privileges and preferences as Units (“equivalent securities”)) or exchangeable for Convertible Securities or carrying a right to purchase Units) equivalent securities at a price per Unit or per equivalent security (oror having a conversion price per Unit or per equivalent security, if a security convertible into or exchangeable for or carrying a right to purchase or subscribe for Units having a conversion, exchange or exercise price, including the price required to be paid to purchase such convertible or exchangeable security or right per Unitapplicable) less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to to such record date by a fraction, :
(i) the numerator of which shall be the number of Units outstanding on such record date, plus the number of Units that the aggregate offering price of the total number of Units and/or equivalent securities so to be offered (and/or the aggregate initial conversion, exchange or exercise conversion price of the convertible or exchangeable securities or rights Convertible Securities so to be offered, including the price required to be paid to purchase such convertible or exchangeable securities or rights) would purchase at such Market Price per Unit, and ; and
(ii) the denominator of which shall be the number of Units outstanding on such record date, plus the number of additional Units and/or equivalent securities to be offered for subscription or purchase (or into which the convertible or exchangeable securities or rights Convertible Securities so to be offered are initially convertible, exchangeable or exercisable). In case such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Such adjustment shall be made successively whenever such a record date is fixedfixed and, and in the event that such rights or warrants are not so issued or if issued, are not exercised prior to the expiration thereof, the Exercise Price in respect of the Rights shall be readjusted to be the Exercise Price which would then be in effect if such record date had not been fixed, or to the Exercise Price which would be in effect based on the number of Units .
(or securities convertible into or exchangeable or exercisable for Unitsc) actually issued upon the exercise of such rights, options or warrants, as the case may be. For purposes of this Agreement, the granting of the right to purchase Units (whether from treasury or otherwise) pursuant to any Distribution Reinvestment Plan or Unit Compensation Arrangement (so long as such right to purchase is in no case evidenced distribution reinvestment plan made available by the delivery of rights REIT, or warrants) any employee benefit, Unit option or similar plans shall be deemed not to constitute an issue of rights, options or warrants by the TrustREIT; provided, however, that, that in all such cases, cases the right to purchase Units is at a price per Unit of not less than 90% of the current Market Price market price per Unit (determined as provided in such plans) of the Units).
(cd) In case the event the Trust REIT shall at any time after the Record Effective Time and prior to the Separation Expiration Time fix a record date for a distribution to all holders of Units (including any such distribution made in connection with a merger in which the REIT is the continuing entity) of evidences of indebtednessindebtedness or assets, assets including cash (other than cash and other than (A) a regular periodic cash distribution or a distribution paid in Units, but including any distribution payable in securities other than Units, or (B) the issuance of Units on followed by a consolidation, such that each unitholder would hold an equal number of Units immediately following such consolidation as it did prior to the liquidation issuance of the Trustsuch Units), rights, options or subscription rights or warrants entitling them to subscribe for or purchase Units (excluding those referred to in subsection 2.3(b3.2(b)) hereof)at a price per Unit that is less than 90% of the Market Price per Unit on the second Trading Day immediately preceding such record date, the Exercise Price in respect of the Rights to be in effect after such record date shall be determined by multiplying the Exercise Price in respect of the Rights in effect immediately prior to such record date by a fraction, :
(i) the numerator of which shall be the such Market Price per Unit on such record dateUnit, less the fair market value (as determined in good faith by the Trustees, whose determination shall be described in a statement filed with the Rights Agent and shall shall be binding on the Rights Agent and the holders of the Rights), on a per Unit basis, ) of the portion of the cash, assets or evidences of indebtedness so to be distributed and or of such subscription rights or warrants applicable to a Unit; and
(ii) the denominator of which shall be such Market Price per Unit. Such adjustments shall be made successively whenever such a record date is fixedfixed and, and in the event that such distribution is not so made, the Exercise Price in respect of the Rights shall be adjusted to be the Exercise Price in respect of the Rights which would have been in effect if such record date had not been fixed.
(de) Notwithstanding anything herein to the contrary, no adjustment in the an Exercise Price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in the such Exercise Price; provided, however, that any adjustments which by reason of this subsection 2.3(d3.2(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2.3 section 3.2 shall be made to the nearest cent or to the nearest ten-thousandth of a UnitUnit or other security, as the case may be. Notwithstanding the first sentence of this subsection 2.3(d3.2(e), any adjustment required by this Section 2.3 section 3.2 shall be made no later than the earlier of of:
(i) three years from the date of the transaction which mandates such adjustment or adjustment; and
(ii) the Expiration Date.
(e) In the event the Trust shall at any time after the Record Time and prior to the Separation Time issue any securities of the Trust (other than the Units), or rights, options or warrants to subscribe for or purchase any such securities of the Trust, or securities convertible into or exchangeable for any such securities of the Trust, in a transaction referred to in clause 2.3(a)(i) or (iv) above, if the Trustees acting in good faith determines that the adjustments contemplated by subsections 2.3(a), (b) and (c) above in connection with such transaction will not appropriately protect the interests of the holders of Rights, the Trustees may determine what other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon exercise of Rights would be appropriate and, notwithstanding subsections 2.3(a), (b) and (c) above, such adjustment, rather than the adjustments contemplated by subsections. Subsections 2.3(a), (b) and (c) above, shall be made. Subject to subsections 5.4(b) and (c) and subject to the approval of the stock exchange on which the Units are listed for trading at the relevant time, the Trust shall amend this Agreement as appropriate to provide for such adjustmentsTime.
(f) Each If, as a result of an adjustment made pursuant to section 4.1, the holder of any Right thereafter exercised shall become entitled to receive any securities other than Units, thereafter the number of such other securities so receivable upon exercise of any Right and the applicable Exercise Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as is practicable to the provisions with respect to the Units contained in this section 3.2, and the provisions of this Agreement with respect to the Units shall apply on like terms to any such other securities.
(g) All Rights originally issued by the Trust REIT subsequent to any adjustment made to the an Exercise Price hereunder shall evidence the right to purchase, at the adjusted Exercise Price, the that number of Units purchasable from time to time hereunder upon exercise of a Right immediately prior to such issuethe Rights, all subject to further adjustment as provided herein.
(gh) Unless the REIT shall have exercised its election as provided in subsection 3.2(i), upon each adjustment of an Exercise Price as a result of the calculations made in subsections 3.2(b) and 3.2(d), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Units (calculated to the nearest one ten-thousandth) determined by:
(i) multiplying:
(A) the number of such Units which would have been issuable upon the exercise of a Right immediately prior to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in effect immediately after such adjustment of the relevant Exercise Price.
(i) The REIT may elect on or after the date of any adjustment of an Exercise Price to adjust the number of Rights, in lieu of any adjustment in the number of Units purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Units for which such a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten- thousandth) obtained by dividing the relevant Exercise Price in effect immediately prior to adjustment of the relevant Exercise Price by the relevant Exercise Price in effect immediately after adjustment of the relevant Exercise Price. The REIT shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the relevant Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this subsection 3.2(i), the REIT shall, as promptly as is practicable, cause to be distributed to holders of record of Rights Certificates on such record date, Rights Certificates evidencing, subject to section 6.5, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the REIT, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the REIT, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein and may bear, at the option of the REIT, the relevant adjusted Exercise Price and shall be registered in the names of holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the an Exercise Price or the number of Units issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the relevant Exercise Price per Unit and the number of Units which were expressed in the initial Rights Certificates issued hereunder.
(hk) In any case in which this Section 2.3 section 3.2 shall require that any an adjustment in the an Exercise Price be made effective as of a record date for a specified event, the Trust REIT may elect to defer defer, until the occurrence of such event event, the issuance to the holder of any Right exercised after such record date of the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise over and above the number of Units and other securities of the TrustREIT, if any, issuable upon such exercise on the basis of the relevant Exercise Price in effect prior to such adjustment; provided, however, that the Trust REIT shall deliver to such holder an a due bill or other appropriate instrument evidencing such holder’s right to receive such additional Units (fractional or otherwise) or other securities upon the occurrence of the event requiring such adjustment.
(il) Notwithstanding anything in this Section 2.3 section 3.2 to the contrary, the Trust REIT shall be entitled to make such reductions in the each Exercise Price, Price in addition to those adjustments expressly required by this Section 2.3section 3.2, as and to the extent that in their its good faith judgment the Trustees shall determine to be advisable in order that any:
(i) consolidation or subdivision of the Units,;
(ii) issuance (wholly or in part for cash) cash of any Units or securities that by their terms are convertible into or exchangeable for Units,;
(iii) Unit distributions, distributions of additional Units to holders of Units; or
(iv) issuance of rights, options or warrants referred to in this Section 2.3section 3.2, hereafter made by the Trust REIT to holders of its Units, shall not be taxable to such Unitholdersunitholders.
(m) The REIT covenants and agrees that, after the Separation Time, except as permitted by section 6.1 or 6.4, it will not take and not permit any Subsidiary of the REIT to take, any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Whenever an adjustment to the Exercise Price or a change in the securities purchasable upon exercise of the Rights is made pursuant to this section 3.2, the REIT shall, not later than the Separation Time, file with the Rights Agent a certificate specifying the particulars of such adjustment and cause notice of such adjustment to be given to the holders of the Rights. Failure to file such certificate or to cause such notice to be given, or any defect therein, shall not affect the validity of any such adjustment or change.
Appears in 1 contract
Samples: Unitholder Rights Plan Agreement