FOURTH AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
EXHIBIT 4.1
FOURTH AMENDMENT TO AMENDED AND RESTATED
RIGHTS AGREEMENT
RIGHTS AGREEMENT
This Fourth Amendment to Amended and Restated Rights Agreement (this “Fourth Amendment”),
dated as of as of October 3, 2005, is entered into by and between Xxxxxxxx Properties Trust, a
Maryland real estate investment trust (the “Company”) and Computershare Shareholder Services, Inc.
(formerly known as EquiServe Trust Company, N.A.) (the “Rights Agent”) and amends the Amended and
Restated Rights Agreement (the “Rights Agreement”), dated as of January 22, 2002, by and between
the Company, and the Rights Agent, as amended by the First Amendment to the Rights Agreement, dated
as of June 26, 2002, the Second Amendment to the Rights Agreement, dated as of October 21, 2003,
and the Third Amendment to the Rights Agreement, dated as of February 14, 2005. Capitalized terms
used herein but not defined herein shall have the meanings given to such terms in the Rights
Agreement.
RECITALS
WHEREAS, the Company has proposed to enter into an Agreement and Plan of Merger (the “Merger
Agreement”), dated as of October 3, 2005, with Xxxxxxxx Properties Acquisition Partners, L.P., a
Delaware limited partnership (“Company L.P.”), Brandywine Realty Trust, a Maryland real estate
investment trust (“Parent”), Brandywine Operating Partnership, L.P., a Delaware limited partnership
(“Parent L.P.”), Brandywine Cognac I, LLC, a Maryland limited liability company (“Merger Sub”),
Brandywine Cognac II, LLC, a Delaware limited liability company (“L.P. Merger Sub”), pursuant to
which the Company will merge with Merger Sub and Merger Sub L.P. will merge with Company L.P. on
the terms set forth therein;
WHEREAS, pursuant to Section 27 of the Rights Agreement the Board of Trustees of the Company
(the “Board”) may, and the Rights Agent shall, if the Company so directs, amend the Rights
Agreement prior to a Distribution Date without the approval of any holders of Common Shares,
subject to the penultimate sentence thereof; and
WHEREAS, the Board has authorized this Fourth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby amend the Rights Agreement
as follows:
Section 1. Amendments.
(a) Section 1(a) of the Rights Agreement is amended by adding the following language to
the end of the first sentence thereof:
“; (g) Brandywine Realty Trust, a Maryland real estate investment
trust (“Parent”), Brandywine Operating Partnership, L.P., a Delaware
limited partnership (“Parent L.P.”), or any of their
Affiliates or Associates by virtue of approval, execution or
delivery of the Agreement and Plan of Merger, to be entered into as
of October 3, 2005, by and among the Company, Parent, Parent L.P.,
Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited
partnership (“Company L.P.”), Brandywine Cognac I, LLC, a Maryland
limited liability company (“Merger Sub”), Brandywine Cognac II, LLC,
a Delaware limited liability company (“L.P. Merger Sub”), as it may
be amended from time to time in accordance with its terms (the
“Merger Agreement”), by virtue of the consummation of any of the
transactions contemplated by the Merger Agreement or by virtue of
the execution of the Voting Agreement, dated as of October 3, 2005,
by and among Parent, Parent L.P. and Xxxxxxx X. Xxxxxxxx (the “MVP
Holder”) and the Voting Agreement, dated as of October 3, 2005, by
and among Parent, Parent L.P. and Xxxxxx X. August (the “TFA
Holder,” together with the MVP Holder, the “Holders”) (the “Voting
Agreements”) to be executed in connection with the Merger Agreement;
or (h) the Holders in connection with the execution, delivery and
the performance of the Voting Agreements.”
(b) Section 1(i) of the Rights Agreement is amended by adding the following sentence at
the end thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
by virtue of the approval, execution or delivery of the Merger
Agreement or the Voting Agreements or by virtue of the consummation
of the transactions contemplated by the Merger Agreement.”
(c) Section 1(u) of the Rights Agreement is amended by adding the following sentence at
the end thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, a Section 11(a)(ii) Event shall not be deemed to have
occurred by virtue of the approval, execution or delivery of the
Merger Agreement or the Voting Agreements or by virtue of the
consummation of the transactions contemplated by the Merger
Agreement.”
(d) Section 1(v) of the Rights Agreement is amended by adding the following at the end
thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, a Section 13 Event shall not be deemed to have occurred by
virtue of the approval, execution or delivery of the
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Merger Agreement or the Voting Agreements or by virtue of the
consummation of the transactions contemplated by the Merger
Agreement.”
(e) Section 11(a)(ii) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
“Notwithstanding the foregoing or anything in this Agreement to the
contrary, this Section 11(a) shall not apply to the approval,
execution and delivery of the Merger Agreement or the Voting
Agreements or the consummation of the transactions contemplated
thereby.”
(f) Section 13 of the Rights Agreement is amended by adding the following provision at
the end thereof:
“(d) Notwithstanding the foregoing, this Section 13 shall not apply
to approval, execution or delivery of the Voting Agreements, the
Merger Agreement or the transactions contemplated thereby.”
(g) The fourth paragraph of Exhibit B to the Rights Agreement is
amended by adding the following sentence to the end thereof:
“Notwithstanding the foregoing or anything in the Rights Agreement
to the contrary, the Rights shall not separate from the Common
Shares and a distribution of the Rights Certificates shall not occur
solely on the basis of the acquisition of beneficial ownership of
10% or more of the outstanding Common Shares by Brandywine Realty
Trust, a Maryland real estate investment trust (“Parent”),
Brandywine Operating Partnership, L.P. a Delaware limited
partnership (“Parent L.P.”), or any of their Affiliates or
Associates by virtue of approval, execution or delivery of the
Agreement and Plan of Merger, to be entered into as of October 3,
2005, by and among Parent, Parent L.P., Xxxxxxxx Properties
Acquisition Partners, L.P., a Delaware limited partnership (“Company
L.P.”), Xxxxxxxx Properties Trust, a Maryland real estate investment
trust (“Company”), Brandywine Cognac I, LLC, a Maryland limited
liability company (“Merger Sub”), Brandywine Cognac II, LLC, a
Delaware limited liability company (“L.P. Merger Sub”), as it may be
amended from time to time in accordance with its terms (the “Merger
Agreement”), or by virtue of the consummation of any of the
transactions contemplated by the Merger Agreement.
Section 2. Effectiveness. This Fourth Amendment shall become effective as of, and
immediately prior to, the execution and delivery of the Merger Agreement and the Voting
Agreements. Except as set forth in Section 1 hereof, the terms and provisions of the Rights
Agreement remain in full force and effect and are hereby ratified and confirmed.
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Section 3. Authority. Each party represents that such party has full power and
authority to enter into this Fourth Amendment and that this Fourth Amendment constitutes a legal,
valid and binding obligation of such party, enforceable against such party in accordance with its
terms.
Section 4. Governing Law. This Fourth Amendment shall be deemed to be a contract
made under the laws of the State of Maryland and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to be made and
performed within such State.
Section 5. Counterparts. This Fourth Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which shall constitute
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
attested, all as of the day and year first above written.
| Attest: | XXXXXXXX PROPERTIES TRUST | |||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxx X. August | |||||||
| Name: | Xxxxxxx X. Xxxxxx | Name: | Xxxxxx X. August | |||||||
| Title: | Sr. Vice President & Corporate Secretary | Title: | President & Chief Executive Officer | |||||||
| Attest: | COMPUTERSHARE SHAREHOLDER SERVICES, INC. | |||||||||
| By: | /s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxx Xxxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxx | Name: | Xxxx Xxxxxxxx | |||||||
| Title: | Managing Director | Title: | Sr. Account Manager | |||||||
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