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RIGHTS AGREEMENT
between
ARCHSTONE-XXXXX TRUST
and
MELLON INVESTOR SERVICES LLC
Rights Agent
Dated as of August 31, 2001
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TABLE OF CONTENTS
Page
Section 1. Certain Definitions.................................................................. 1
Section 2. Appointment of Rights Agent.......................................................... 5
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Section 3. Issuance of Right Certificates....................................................... 5
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Section 4. Form of Right Certificates........................................................... 8
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Section 5. Countersignature and Registration.................................................... 8
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Section 6. Transfer, Division, Combination and Exchange of Right Certificates; Mutilated,
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Destroyed, Lost or Stolen Right Certificates......................................... 9
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Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights........................ 10
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Section 8. Cancellation and Destruction of Right Certificates................................... 12
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Section 9. Availability of Preferred Shares..................................................... 12
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Section 10. Preferred Shares Record Date......................................................... 12
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Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights................... 13
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Section 12. Certificate of Adjusted Purchase Price or Number of Shares........................... 19
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Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power................. 20
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Section 14. Fractional Rights and Fractional Shares.............................................. 22
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Section 15. Rights of Action..................................................................... 23
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Section 16. Agreement of Right Holders........................................................... 23
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Section 17. Right Certificate Holder Not Deemed a Shareholder.................................... 24
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Section 18. Concerning the Rights Agent.......................................................... 24
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Section 19. Merger or Consolidation or Change of Name of Rights Agent............................ 25
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Section 20. Rights and Duties of Rights Agent.................................................... 25
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Section 21. Change of Rights Agent............................................................... 28
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Section 22. Issuance of New Right Certificates................................................... 28
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Section 23. Redemption........................................................................... 29
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Section 24. Exchange............................................................................. 30
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Section 25. Notice of Certain Events............................................................. 31
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Section 26. Notices.............................................................................. 32
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Section 27. Supplements and Amendments........................................................... 32
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Section 28. General Limitations on Redemption, Modification or Termination of Rights or
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Amendment to Agreement............................................................... 33
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Section 29. Successors........................................................................... 33
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Section 30. Benefits of this Agreement........................................................... 33
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Section 31. Severability......................................................................... 33
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Section 32. Governing Law........................................................................ 33
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Section 33. Counterparts......................................................................... 34
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Section 34. Descriptive Headings................................................................. 34
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Section 35. Determinations and Actions by the Board of Trustees.................................. 34
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Section 36. Limitation of Liability.............................................................. 34
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Exhibit A - Terms of Series B Junior Participating Preferred Shares
Exhibit B - Form of Right Certificate
RIGHTS AGREEMENT
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Rights Agreement, dated as of August 31, 2001 (this "Agreement"),
between Archstone- Xxxxx Trust, a Maryland real estate investment trust (the
"Trust"), and Mellon Investor Services LLC, a New Jersey limited liability
company, as rights agent (the "Rights Agent").
WITNESSETH:
WHEREAS, the Board of Trustees of the Trust (the "Board of Trustees")
has authorized and declared a dividend of one preferred share purchase right (a
"Right") for each Common Share (as hereinafter defined) of the Trust outstanding
as of the close of business on the effective date of the Primary Archstone
Merger (as such term is defined in the Amended and Restated Agreement and Plan
of Merger, dated as of May 3, 2001, by and among Archstone, the Trust, Xxxxxxx
X. Xxxxx Residential Realty, Inc. and Xxxxxxx X. Xxxxx Residential Realty L.P.
(the "Merger Agreement") (the "Record Date"), each Right representing the right
to purchase one one-hundredth of a Preferred Share (as hereinafter defined),
upon the terms and subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect to each Common
Share that shall become outstanding between the Record Date and the Expiration
Date (as such term is hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
"Acquiring Person" shall mean any Person (as hereinafter
defined) who or which, together with all Affiliates and Associates (as
such terms are hereinafter defined) of such Person, shall be the
Beneficial Owner (as hereinafter defined) of 15% or more of the Common
Shares of the Trust then outstanding, but shall not include the Trust,
any Subsidiary (as hereinafter defined) of the Trust, or any employee
benefit plan of the Trust or of any Subsidiary of the Trust or any
entity holding Common Shares for or pursuant to the terms of any such
plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of (i) an acquisition of Common Shares
by the Trust which, by reducing the number of Common Shares
outstanding, increases the proportionate number of Common Shares
beneficially owned by such Person to 15% or more of the Common Shares
of the Trust then outstanding, or (ii) the acquisition by such Person
of newly issued Common Shares directly from the Trust (it being
understood that a purchase from an underwriter or other intermediary is
not directly from the Trust); provided, however, that if a Person shall
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become the Beneficial Owner of 15% or more of the Common Shares of the
Trust then
outstanding by reason of Common Share purchases by the Trust or the
receipt of newly issued Common Shares directly from the Trust and
shall, after such Common Share purchases or direct issuance by the
Trust, become the Beneficial Owner of any additional Common Shares of
the Trust, then such Person shall be deemed to be an "Acquiring
Person"; provided further, however, that any transferee from such
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Person who becomes the Beneficial Owner of 15% or more of the Common
Shares of the Trust then outstanding shall nevertheless be deemed to be
an "Acquiring Person." Notwithstanding the foregoing, if the Board of
Trustees determines in good faith that a Person who would otherwise be
an "Acquiring Person," as defined pursuant to the foregoing provisions
of this paragraph, has become such inadvertently, and such Person
divests as promptly as practicable (and in any event within ten
Business Days after notification by the Trust) a sufficient number of
Common Shares so that such Person would no longer be an Acquiring
Person, as defined pursuant to the foregoing provisions of this
paragraph, then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date of this
Agreement.
"Agreement" shall have the meaning set forth in the preamble
hereto.
"Archstone" shall mean Archstone Communities Trust, a Maryland
real estate investment trust.
A Person shall be deemed the "Beneficial Owner" of and shall
be deemed to have "beneficial ownership" of or to "beneficially own"
any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has (A) the
right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, whether written or
oral (other than customary agreements with and between
underwriters and selling group members with respect to a bona
fide public offering of securities, but only to the extent
such securities are held for a period consistent with such a
bona fide public offering), or upon the exercise of conversion
rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a
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Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; (B) the sole
or shared right to vote or dispose of (including any such
right
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pursuant to any agreement, arrangement or understanding,
whether written or oral); provided, however, that a Person
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shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement
or understanding to vote such security (1) arises solely from
a revocable proxy or consent given to such Person in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or (C) "beneficial ownership"
(as determined pursuant to Rule 13d-3 (or any successor rule)
of the General Rules and Regulations under the Exchange Act);
or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding, whether written or oral (other than customary
agreements with and between underwriters and selling group
members with respect to a bona fide public offering of
securities, but only to the extent such securities are held
for a period consistent with such a bona fide public offering)
for the purpose of acquiring, holding, voting (except to the
extent contemplated by the proviso to clause (B) of
subparagraph (ii) of this definition) or disposing of any
securities of the Trust.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when used
with reference to the Beneficial Ownership of securities of the Trust
by any Person, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
own beneficially hereunder.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, any "clearing agency," as defined in Section
3(a)(23) of the Exchange Act, which is holding securities solely in its
capacity as a clearing agency, shall not be deemed to be the Beneficial
Owner of such securities.
"Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in New York or New
Jersey are authorized or obligated by law or executive order to close.
"Board of Trustees" shall have the meaning set forth in the
preamble hereto.
"Close of business" on any given date shall mean 5:00 P.M.,
Eastern time, on such date; provided, however, that if such date is not
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a Business Day it shall mean 5:00 P.M., Eastern time, on the next
preceding Business Day.
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"Common Shares" when used with no direct reference or with
reference to the Trust shall mean the common shares of beneficial
interest, $0.01 par value per share, of the Trust. "Common Shares" when
used with reference to any Person other than the Trust shall mean the
capital stock (or equity interest) with the greatest voting power of
such other Person or the equity securities or other equity interest
having power to control or direct the management of such other Person.
"Distribution Date" shall have the meaning set forth in
Section 3 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Ratio" shall have the meaning set forth in Section
24 hereof.
"Expiration Date" shall have the meaning set forth in Section
7 hereof.
"Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
"Future Trustee" shall mean (a) any trustee of the Trust who
is an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or an employee, director, representative, nominee or designee
of any Acquiring Person or of any such Affiliate or Associate or (b)
any trustee of the Trust who was not a member of the Board of Trustees
immediately prior to the time any Person becomes an Acquiring Person;
provided, however, that any such trustee shall no longer be deemed to
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be a Future Trustee at the expiration of 180 days after the date such
trustee was elected to the Board of Trustees.
"Merger Agreement" shall have the meaning set forth in the
preamble hereto.
"NASDAQ" shall have the meaning set forth in Section 11(d)(i)
hereof.
"NYSE" shall have the meaning set forth in Section 11(d)(i)
hereof.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Preferred Shares" shall mean the Series B Junior
Participating Preferred Shares of Beneficial Interest, $0.01 par value
per share, of the Trust having the rights and preferences set forth on
Exhibit A to this Agreement.
"Principal Party" shall have the meaning set forth in Section
13(b) hereof.
"Purchase Price" shall have the meaning set forth in Section 4
hereof.
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"Record Date" shall have the meaning set forth in the preamble
hereto.
"Redemption Date" shall have the meaning set forth in Section
7 hereof.
"Redemption Price" shall have the meaning set forth in Section
23 hereof.
"Right" shall have the meaning set forth in the preamble
hereto.
"Rights Agent" shall have the meaning set forth in the
preamble hereto.
"Right Certificate" shall have the meaning set forth in
Section 3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d)
promulgated under the Exchange Act) by the Trust or an Acquiring Person
that an Acquiring Person has become such.
"Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person. For purposes of this Agreement, Archstone shall be deemed a
Subsidiary of the Trust and each Subsidiary of Archstone shall likewise
be deemed a Subsidiary of the Trust.
"Trading Day" shall have the meaning set forth in Section
11(d)(i) hereof.
"Triggering Event" shall mean any event described in Section
11(a)(ii) or Section 13(a) hereof.
"Trust" shall have the meaning set forth in the preamble
hereto.
Any determination or interpretation required in connection with any of
the definitions contained in this Section 1 shall be made by the Board of
Trustees in their good faith judgment, which determination shall be final and
binding on the Rights Agent and on all shareholders of the Trust.
Section 2. Appointment of Rights Agent. The Trust hereby appoints
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the Rights Agent to act as agent for the Trust in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Trust may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable upon ten days' prior written notice to the Rights Agent.
The Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such co-Rights Agent.
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Section 3. Issuance of Right Certificates.
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(a) Until the earlier of (i) the close of business on the tenth day
after the Shares Acquisition Date, (ii) the close of business on the fifteenth
Business Day (or such later date as may be determined by action of the Board of
Trustees prior to such time as any Person becomes an Acquiring Person) after the
date of the commencement by any Person (other than the Trust, any Subsidiary of
the Trust, any employee benefit plan of the Trust or of any Subsidiary of the
Trust or any entity holding Common Shares for or pursuant to the terms of any
such plan) of, or of the first public announcement of the intention of any
Person (other than the Trust, any Subsidiary of the Trust, any employee benefit
plan of the Trust or of any Subsidiary of the Trust or any entity holding Common
Shares for or pursuant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which would result in any Person becoming the
Beneficial Owner of Common Shares aggregating 15% or more of the then
outstanding Common Shares, or (iii) the close of business on the tenth Business
Day (or such later date as may be determined by action of the Board of Trustees
prior to such time as any Person becomes an Acquiring Person) after the date of
filing by any Person (other than the Trust, any Subsidiary of the Trust, or any
employee benefit plan of the Trust or any Subsidiary of the Trust or any entity
holding Common Shares for or pursuant to the terms of any such Plan) of, or the
first public announcement of the intention of any Person (other than the Trust,
any Subsidiary of the Trust, or any employee benefit plan of the Trust or any
Subsidiary of the Trust or any entity holding Common Shares for or pursuant to
the terms of any such Plan) to file, any application, request, submission or
other document with any federal or state regulatory authority seeking approval
of, attempting to rebut any presumption of control upon, or otherwise indicating
an intention to enter into, any transaction or series of transactions the
consummation of which would result in any Person (other than the Trust, any
Subsidiary of the Trust, or any employee benefit plan of the Trust or any
Subsidiary of the Trust or any entity holding Common Shares for or pursuant to
the terms of any such Plan) becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares, other than a
transaction in which newly issued Common Shares are issued directly by the Trust
to such Person (including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier of such dates
being herein referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof) by the certificates
for Common Shares registered in the names of the holders thereof (which
certificates shall also be deemed to be certificates for Rights) and not by
separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying Common Shares (including a
transfer to the Trust). As soon as practicable after the Distribution Date, the
Trust will prepare and execute, the Rights Agent will countersign, and the Trust
will send or cause to be sent (and the Rights Agent, at the expense of the
Trust, will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Trust, a Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right for each Common Share so held. As of
the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
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The Trust shall promptly notify the Rights Agent in writing upon the
occurrence of the Distribution Date and, if such notification is given orally,
the Trust shall confirm same in writing on or prior to the Business Day next
following. Until such notice is received by the Rights Agent, the Rights Agent
may presume conclusively for all purposes that the Distribution Date has not
occurred.
(b) With respect to certificates for Common Shares outstanding as of
the Record Date, until the Distribution Date, the Rights will be evidenced by
such certificates registered in the names of the holders thereof, and registered
holders of Common Shares shall also be the registered holders of the associated
Rights (regardless of whether such ownership is indicated on the Common Share
certificates). Until the earliest of the Distribution Date, the Redemption Date
or the Final Expiration Date, the transfer of any certificate for Common Shares
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby.
(c) Rights shall be issued in respect of all Common Shares which are
issued (whether or not previously issued) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final Expiration
Date. Certificates evidencing such Common Shares shall also be deemed to be
certificates for Rights. Certificates evidencing both Common Shares and Rights
in accordance with this Section 3 which are executed and delivered (whether or
not the Common Shares represented thereby were previously issued or are
presented for transfer) by the Trust (including, without limitation,
certificates representing reacquired Common Shares referred to in the last
sentence of this paragraph (c)) after the Record Date but prior to the earliest
of the Distribution Date, the Redemption Date or the Final Expiration Date shall
have impressed on, printed on, written on or otherwise affixed to them a legend
that by itself or together with prior legends is substantially to the following
effect:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in the Rights Agreement between
Archstone-Xxxxx Trust (the "Trust") and Mellon Investor Services
LLC, dated as of August 31, 2001 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal offices of the Trust.
Under certain circumstances, as set forth in the Rights
Agreement, the Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Trust
will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an
Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement), whether currently
held by or on behalf of such Person or by any subsequent holder,
shall become null and void.
Until the Distribution Date, the Rights associated with the Common Shares shall
be evidenced by the certificates evidencing the associated Common Shares alone
(regardless of whether any such
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certificate contains the above legend), and the transfer of any such certificate
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby. In the event that the Trust purchases or acquires
any Common Shares after the Record Date but prior to the Distribution Date, any
Rights associated with such Common Shares shall be deemed canceled and retired
so that the Trust shall not be entitled to exercise any Rights associated with
the Common Shares which are no longer outstanding.
Section 4. Form of Right Certificates.
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(a) The Right Certificates (and the forms of election to purchase
Preferred Shares and of assignment to be printed on the reverse thereof) shall
be substantially the same as Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Trust may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Right Certificates shall entitle the holders thereof
to purchase such number of one one-hundredths of a Preferred Share as shall be
set forth therein at the price per one one-hundredth of a Preferred Share set
forth therein (the "Purchase Price"), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price thereof shall
be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section
22 hereof that evidences Rights beneficially owned by: (i) an Acquiring Person
or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or any Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes an Acquiring Person, or (iii) a transferee of an
Acquiring Person (or any Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding, whether written or oral, regarding the transferred
Rights or (B) a transfer which the Board of Trustees otherwise concludes in good
faith is part of a plan, arrangement or understanding, whether written or oral,
which has as a primary purpose or effect the avoidance of Section 7(e) hereof,
and any Right Certificate issued pursuant to Section 6 or Section 11 hereof upon
the transfer, exchange, replacement or adjustment of any other Right Certificate
referred to in this sentence, shall contain (to the extent feasible and
otherwise reasonably identifiable as such) the following legend:
The Rights evidenced by this Right Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Right Certificate and the Rights evidenced
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hereby may become void in the circumstances specified in Section
7(e) of such Agreement.
The provisions of Section 7(e) hereof shall apply whether or not any Right
Certificate actually contains the foregoing legend.
Section 5. Countersignature and Registration. The Right Certificates
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shall be executed on behalf of the Trust by its Chairman of the Board, Chief
Executive Officer, any President, any Executive Vice President or Vice
President, or its Secretary, either manually or by facsimile signature, shall
have affixed thereto the Trust's seal or a facsimile thereof, and shall be
attested by the Secretary or an Assistant Secretary of the Trust, either
manually or by facsimile signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Trust who shall have signed any of the
Right Certificates shall cease to be such officer of the Trust before
countersignature by the Rights Agent and issuance and delivery by the Trust,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Trust with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such officer
of the Trust; and any Right Certificate may be signed on behalf of the Trust by
any person who, at the actual date of the execution of such Right Certificate,
shall be a proper officer of the Trust to sign such Right Certificate, although
at the date of the execution of this Rights Agreement any such person was not
such an officer.
Following the Distribution Date, and receipt by the Rights Agent of
notice of the Distribution Date and such other necessary information as
reasonably requested by the Rights Agent, the Rights Agent will keep or cause to
be kept, at its office designated for such purpose, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Division, Combination and Exchange of Right
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Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
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to the provisions of Sections 4(b), 7(e), 14 and 24 hereof, at any time after
the close of business on the Distribution Date, and at or prior to the close of
business on the earlier of the Redemption Date or the Final Expiration Date, any
Right Certificate or Right Certificates may be transferred, divided, combined or
exchanged for another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of Preferred Shares (or, following a
Triggering Event, Common Shares or other securities or property, as the case may
be) as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer, divide,
combine or exchange any Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, divided, combined or
exchanged at the office of the Rights Agent designated for such purpose. Neither
the Rights Agent nor the Trust shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Right Certificate until the
registered holder shall have properly completed and
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signed the certificate contained in the form of assignment on the reverse side
of such Right Certificate and the Trust shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Trust or Rights
Agent shall reasonably request. Thereupon the Rights Agent shall, subject to
Sections 4 and 7 hereof, countersign and deliver to the person entitled thereto
a Right Certificate or Right Certificates, as the case may be, as so requested.
The Trust may require payment of a sum sufficient to cover any tax or charge
that may be imposed in connection with any transfer, division, combination or
exchange of Right Certificates. The Rights Agent shall have no duty or
obligation under this Section unless and until it is reasonably satisfied that
all such taxes and/or charges have been paid or that adequate provision has been
made for such payment.
Upon receipt by the Trust and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Trust's request,
reimbursement to the Trust and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Trust will make and deliver a new Right
Certificate of like tenor to the Rights Agent for countersignature and delivery
to the registered holder in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
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(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent at the office of
the Rights Agent designated for such purpose, together with payment of the
Purchase Price with respect to each surrendered Right for the total number of
Preferred Shares (or Common Shares or other securities or property, as the case
may be) as to which the Rights are exercised, at or prior to the earliest of (i)
the close of business on August 31, 2011 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date"), or (iii) the time at which such Rights are exchanged by the
Trust as provided in Section 24 hereof (the earliest to occur of the events
described in (i), (ii) and (iii) being herein referred to as the "Expiration
Date").
(b) The Purchase Price for each one one-hundredth of a Preferred Share
pursuant to the exercise of a Right shall initially be $75.00, shall be subject
to adjustment from time to time as provided in Sections 11 and 13 hereof and
shall be payable in lawful money of the United States of America in accordance
with paragraph (c) below.
(c) Upon receipt of a Right Certificate evidencing exercisable Rights,
with the form of election to purchase and the certificate on the reverse side of
the Right Certificate duly executed, accompanied by payment of the Purchase
Price for the Preferred Shares (or Common Shares or other securities or
property, as the case may be) to be purchased and an amount equal to any
applicable
10
tax or charge required to be paid by the holder of such Right Certificate in
accordance with Section 9 hereof by certified check, cashier's check or money
order payable to the order of the Trust, the Rights Agent shall thereupon
promptly (i) (A) requisition from any transfer agent of the Preferred Shares (or
make available, if the Rights Agent is the transfer agent of the Preferred
Shares) certificates for the number of Preferred Shares to be purchased and the
Trust hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Trust shall have elected to deposit the Preferred Shares
issuable upon exercise of the Rights with a depositary agent, requisition from
the depositary agent depositary receipts representing such number of one one-
hundredths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares evidenced by such receipts shall be
deposited by the transfer agent therefor with the depositary agent) and the
Trust shall direct the depositary agent to comply with such request, (ii) when
appropriate, requisition from the Trust the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such cash referred to
in clause (ii) above to or upon the order of the registered holder of such Right
Certificate. In the event that the Trust is obligated to issue other securities
(including Common Shares) of the Trust, pay cash and/or distribute other
property pursuant to Section 11(a) hereof, the Trust will make all arrangements
necessary so that such other securities, cash and/or property are available for
distribution by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the occurrence of a Triggering Event, any Rights beneficially owned by (i)
an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes an Acquiring Person, or
(iii) a transferee of an Acquiring Person (or any Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming
an Acquiring Person and receives such Rights pursuant to either (x) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or understanding,
whether written or oral, regarding the transferred Rights or (y) a transfer
which the Board of Trustees otherwise concludes in good faith is part of a plan,
arrangement or understanding, whether written or oral, which has as a primary
purpose or effect the avoidance of this Section 7(e), shall become null and void
without any further action, and any holder of such Rights shall thereupon have
no rights whatsoever with respect to such Rights, whether under any provision of
this Agreement or otherwise, from and after the occurrence of a Triggering
Event. The Trust shall use all reasonable efforts to
11
ensure that the provisions of this Section 7(e) are complied with, but shall
have no liability to any holder of Rights for the inability to make any
determinations with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Trust shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless the certificate contained in the form of
election to purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been properly completed and signed by
the registered holder thereof and the Trust shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Trust or the Rights
Agent shall reasonably request.
(g) The Trust covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued Preferred Shares (and,
following the occurrence of a Triggering Event, Common Shares and/or other
securities), the number of Preferred Shares (and, following the occurrence of a
Triggering Event, Common Shares and/or other securities) that will be sufficient
to permit the exercise in full of all outstanding Rights.
Section 8. Cancellation and Destruction of Right Certificates. All Right
--------------------------------------------------
Certificates surrendered for the purpose of exercise, transfer, division,
combination or exchange shall, if surrendered to the Trust or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Trust shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Trust otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Right Certificates to the Trust, or shall, at the written request
of the Trust, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Trust.
Section 9. Availability of Preferred Shares. The Trust covenants and
--------------------------------
agrees that it will take all such action as may be necessary to ensure that all
Preferred Shares (and, following the occurrence of a Triggering Event, Common
Shares and/or other securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such Preferred Shares (and, following
the occurrence of a Triggering Event, Common Shares and/or other securities),
subject to payment of the Purchase Price, be duly and validly authorized and
issued and fully paid and nonassessable.
The Trust further covenants and agrees that it will pay when due and
payable any and all taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Preferred Shares (or
Common Shares and/or other securities, as the case may be) upon the exercise of
Rights. The Trust shall not, however, be required to pay any tax or charge which
may be payable in respect of any transfer or delivery of Right Certificates to a
person other than, or the issuance or delivery of certificates or depositary
receipts for the Preferred Shares (or
12
Common Shares and/or other securities, as the case may be) in a name other than
that of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or to deliver any certificates or
depositary receipts for Preferred Shares (or Common Shares and/or other
securities, as the case may be) upon the exercise of any Rights until any such
tax shall have been paid (any such tax or charge being payable by the holder of
such Right Certificate at the time of surrender) or until it has been
established to the Trust's or Rights Agent's reasonable satisfaction that no
such tax or charge is due.
Section 10. Preferred Shares Record Date. Each person in whose name any
----------------------------
certificate for Preferred Shares (or Common Shares and/or other securities, as
the case may be) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares or securities
represented thereby on, and such certificate shall be dated, the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and any applicable taxes or charges) was made; provided,
--------
however, that if the date of such surrender and payment is a date upon which the
-------
Preferred Shares (or Common Shares and/or other securities, as the case may be)
transfer books of the Trust are closed, such person shall be deemed to have
become the record holder of such shares or securities on, and such certificate
shall be dated, the next succeeding Business Day on which the Preferred Shares
(or Common Shares and/or other securities, as the case may be) transfer books of
the Trust are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any rights of a holder of
Preferred Shares (or Common Shares and/or other securities, as the case may be)
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Trust, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number of
-----------------------------------------------------------
Rights. The Purchase Price, the number of Preferred Shares covered by each Right
------
and the number of Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
(a) (i) In the event the Trust shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Shares payable
in Preferred Shares, (B) subdivide the outstanding Preferred Shares,
(C) combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any of its shares in a reclassification
of the Preferred Shares (including any such reclassification in
connection with a consolidation or merger in which the Trust is the
continuing or surviving entity), except as otherwise provided in this
Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such dividend or of the effective date
of such subdivision, combination or reclassification, and the number
and kind of shares issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time
shall be entitled to receive the aggregate number and kind of shares
which, if such Right had been exercised immediately prior to such date
and at a time when the Preferred Shares transfer books of the Trust
were open, he would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided,
--------
13
however, that in no event shall the consideration to be paid upon the
-------
exercise of one Right be less than the aggregate par value of the
shares of the Trust issuable upon exercise of one Right. If an event
occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 hereof, in the event any Person
becomes an Acquiring Person, each holder of a Right, except as provided
below and in Section 7(e) hereof, shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance
with the terms of this Agreement and in lieu of Preferred Shares, such
number of Common Shares of the Trust as shall equal the result obtained
by (A) multiplying the then current Purchase Price by the number of one
one- hundredths of a Preferred Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then current
per share market price of the Trust's Common Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of such
event. In the event that any Person shall become an Acquiring Person
and the Rights shall then be outstanding, the Trust shall not take any
action which would eliminate or diminish the benefits intended to be
afforded by the Rights.
(iii) In lieu of issuing Common Shares of the Trust in
accordance with Section 11(a)(ii) hereof, the Trust may, in the sole
discretion of the Board of Trustees, elect to (and, in the event that
the Board of Trustees has not exercised the exchange right contained in
Section 24 hereof and there are not sufficient issued but not
outstanding and authorized but unissued Common Shares to permit the
exercise in full of the Rights in accordance with Section 11(a)(ii)
hereof, the Trust shall) take all such action as may be necessary to
authorize, issue or pay, upon the exercise of the Rights, cash
(including by way of a reduction of the Purchase Price), property,
other securities or any combination thereof having an aggregate value
equal to the value of the Common Shares of the Trust which otherwise
would have been issuable pursuant to Section 11(a)(ii) hereof, which
aggregate value shall be determined by a majority of the Board of
Trustees. For purposes of the preceding sentence, the value of the
Common Shares shall be determined pursuant to Section 11(d) hereof and
the value of any equity securities which a majority of the Board of
Trustees determines to be equivalent to a Common Share (including the
Preferred Shares, in such ratio as the Board of Trustees shall
determine) shall be deemed to have the same value as the Common Shares.
Any such election by the Board of Trustees must be made and publicly
announced within 60 days following the date on which the event
described in Section 11(a)(ii) hereof shall have occurred. Following
the occurrence of the event described in Section 11(a)(ii) hereof, a
majority of the Board of Trustees then in office may suspend the
exercisability of the Rights for a period of up to 60 days following
the date on which the event described in Section 11(a)(ii) hereof shall
have occurred to the extent that the Board of Trustees has not
determined whether to exercise the Trust's right of election under this
Section 11(a)(iii). In
14
the event of any such suspension, the Trust shall issue a public
announcement stating that the exercisability of the Rights has been
temporarily suspended. The Trust shall notify the Rights Agent whenever
it makes a public announcement pursuant this Section 11(a)(iii) and
give the Rights Agent a copy of such announcement.
(b) In case the Trust shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent preferred share
(or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current per
share market price of the Preferred Shares (as defined in Section 11(d) hereof)
on such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of
Preferred Shares which the aggregate offering price of the total number of
Preferred Shares and/or equivalent preferred shares so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and the denominator of
which shall be the number of Preferred Shares outstanding on such record date
plus the number of additional Preferred Shares and/or equivalent preferred
shares to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible); provided, however, that
-------- -------
in no event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of the Trust issuable upon
exercise of one Right. In case such subscription price is paid in a
consideration part or all of which shall 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 on the holders of the
Rights. Preferred Shares owned by or held for the account of the Trust shall not
be deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Trust shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Trust is the continuing or surviving entity) of evidences of indebtedness or
assets (other than a regular periodic cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the then current per share market price of the Preferred Shares 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) of the portion of the assets or evidences of indebtedness
so
15
to be distributed or of such subscription rights or warrants attributable to one
Preferred Share and the denominator of which shall be such current per share
market price (as such term is defined in Section 11(d)(i) hereof) of the
Preferred Shares; provided, however, that in no event shall the consideration to
-------- -------
be paid upon the exercise of one Right be less than the aggregate par value of
the shares of the Trust to be issued upon exercise of one Right. 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 Purchase Price shall
again be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than under
Section 11(a)(iii) hereof, the "current per share market price" of any security
(a "Security" for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of such Security
for the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date, and for the purpose of any computation under
Section 11(a)(iii) hereof, the "current per share market price" of a Security on
any date shall be deemed to be the average of the daily closing prices per share
of such Security for thirty (30) consecutive Trading Days immediately following
such date; provided, however, that in the event that the current per share
-------- -------
market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or distribution on
such Security payable in shares of such Security or securities convertible into
such shares (other than the Rights), or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of 30 Trading Days
after the ex- dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in each
such case, the "current per share market price" shall be appropriately adjusted
to reflect the current market price per share equivalent (ex-dividend) of such
Security. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on The New York Stock Exchange (the "NYSE") or, if
the Security is not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or such other system then in
use, or, if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security selected by the Board
of Trustees. If on any such date no market maker is making a market in the
Security, the fair value of such Security on such date as determined in good
faith by the Board of Trustees shall be used or, if at the time of such
determination there is an Acquiring Person, by a majority of the members of the
Board of Trustees then in office who are not Future Trustees, or if there are no
such members who are not Future Trustees, by a nationally recognized investment
banking firm selected by the Board of Trustees, which shall have the duty to
make such determination in a reasonable and objective manner, whose
determination shall be
16
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is not
listed or admitted to trading on any national securities exchange, a Business
Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i) hereof. If the
Preferred Shares are not publicly traded, the "current per share market price"
of the Preferred Shares shall be conclusively deemed to be the current per share
market price of the Common Shares of the Trust as determined pursuant to Section
11(d)(i) hereof (appropriately adjusted to reflect any share split, share
dividend or similar transaction occurring after the date hereof), multiplied by
one hundred. If neither the Common Shares of the Trust nor the Preferred Shares
are publicly held or so listed or traded, "current per share market price" shall
mean the fair value per share as determined in good faith by the Board of
Trustees, whose determination shall be described in a statement filed with the
Rights Agent, or, if at the time of such determination there is an Acquiring
Person, by a majority of the members of the Board of Trustees then in office who
are not Future Trustees, or if there are no such members who are not Future
Trustees, by a nationally recognized investment banking firm selected by the
Board of Trustees, which shall have the duty to make such determination in a
reasonable and objective manner, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
-------- -------
that any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-millionth of a Preferred Share or one ten-
thousandth of any other share or security, as the case may be. Notwithstanding
the first sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three years from the
date of the transaction which requires such adjustment or (ii) the date of the
expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
or Section 13(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of the Trust other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Shares contained in this Section 11, and the provisions of Sections 7,
9, 10, 13 and 14 hereof with respect to the Preferred Shares shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Trust subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the
17
number of one one-hundredths of a Preferred Share purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Trust shall have exercised its election as provided
in Section 11(i) hereof, upon each adjustment of the Purchase Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one- hundredths of a Preferred Share (calculated to the nearest one one-
millionth of a Preferred Share) obtained by (i) multiplying (A) the number of
one one-hundredths of a Preferred Share covered by a Right immediately prior to
such adjustment by (B) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Trust may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-hundredths of a Preferred Share purchasable
upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one
one-hundredths of a Preferred Share for which 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 Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price. The
Trust shall make a public announcement of its election to adjust the number of
Rights (with prompt written notice thereof to the Rights Agent), 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 Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Trust shall, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Trust, shall cause to
be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Trust, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of one one-hundredths
of a Preferred Share which were expressed in the initial Right Certificates
issued hereunder.
18
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Trust shall take any
action which may, in the opinion of its counsel, be necessary in order that the
Trust may validly and legally issue fully paid and nonassessable Preferred
Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Trust may elect to defer (with prompt written notice
thereof to the Rights Agent) until the occurrence of such event the issuance to
the holder of any Right exercised after such record date of the Preferred Shares
and other securities of the Trust, if any, issuable upon such exercise over and
above the Preferred Shares and other securities of the Trust, if any, issuable
upon such exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Trust shall deliver to such holder a due
-------- -------
xxxx or other appropriate instrument evidencing such holder's right to receive
such additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Trust shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares, issuance
wholly for cash of any Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities which by their terms
are convertible into or exchangeable for Preferred Shares, dividends on
Preferred Shares payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section 11(b) hereof, hereafter made by the
Trust to holders of its Preferred Shares shall not be taxable to such
shareholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Trust shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (x) the
number of one one-hundredths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by multiplying the number
of one one-hundredths of a Preferred Share so purchasable immediately prior to
such event by a fraction, the numerator of which is the number of Common Shares
outstanding immediately before such event and the denominator of which is the
number of Common Shares outstanding immediately after such event, and (y) each
Common Share outstanding immediately after such event shall have issued with
respect to it that number of Rights which each Common Share outstanding
immediately prior to such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination or consolidation
is effected.
(o) So long as the shares issuable upon the exercise of the Rights
may be listed on any national securities exchange, the Trust shall use its best
efforts to cause, from and after such time
19
as the Rights become exercisable, all shares reserved for such issuance to be
listed on such exchange upon official notice of issuance upon such exercise.
(p) The Trust shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of a Triggering Event, a registration
statement under the Securities Act with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act) until the date of
the expiration of the Rights. The Trust will also take such action as may be
appropriate under the blue sky laws of the various states. The Trust may
temporarily suspend, for a period of time not to exceed 90 days, the
exercisability of the Rights in order to prepare and file such registration
statement or in order to comply with such blue sky laws. Upon any such
suspension, the Trust shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended (with prompt written
notice thereof to the Rights Agent).
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
----------------------------------------------------------
Whenever an adjustment occurs as provided in Section 11 or 13 hereof, the Trust
shall promptly (a) prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares or the Preferred
Shares a copy of such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall have no duty or liability with respect
to, and shall not be deemed to have knowledge of any adjustment unless and until
it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power.
-------------
(a) If after the Shares Acquisition Date, directly or indirectly,
(x) the Trust shall consolidate with, or merge with and into, any other Person,
(y) any Person shall consolidate with the Trust, or merge with and into the
Trust and the Trust shall be the continuing or surviving entity of such merger
and, in connection with such merger, all or part of the Common Shares shall be
changed into or exchanged for stock or other securities of any other Person (or
the Trust) or cash or any other property, or (z) the Trust shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating 50%
or more of the assets or earning power of the Trust and its Subsidiaries (taken
as a whole) to any Person or Persons other than the Trust or one or more of its
wholly-owned Subsidiaries, then, and in each such case, proper provision shall
be made so that (i) each holder of a Right (except as otherwise provided herein)
shall thereafter have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one one-
hundredths of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of validly authorized and issued, fully paid, non-assessable and
freely tradeable common shares of the Principal Party (as hereinafter defined),
free and clear of all liens,
20
rights of call or first refusal, encumbrances or other adverse claims, as shall
equal the result obtained by (A) multiplying the then current Purchase Price by
the number of one one-hundredths of a Preferred Share for which a Right is then
exercisable (or, if such Right is not then exercisable for a number of one
one-hundredths of a Preferred Share, the number of such fractional shares for
which it was exercisable immediately prior to an event described under Section
11(a)(ii) hereof) and dividing that product by (B) 50% of the then current per
share market price of the common shares of such Principal Party (determined
pursuant to Section 11(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, or otherwise, all the obligations and duties of the
Trust pursuant to this Agreement; (iii) the term "Trust" shall thereafter be
deemed to refer to such Principal Party; and (iv) such Principal Party shall
take such steps (including, but not limited to, the authorization and
reservation of a sufficient number of its common shares in accordance with
Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its common shares thereafter deliverable upon
the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) In the case of any transaction described in (x) or (y) of
the first sentence of Section 13(a) hereof, the Person that is the
issuer of any securities into which Common Shares of the Trust are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the surviving entity of such merger or
consolidation (including the Trust if applicable); and
(ii) in the case of any transaction described in (z) of the
first sentence in Section 13(a) hereof, the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case described in clauses (b)(i) and (b)(ii)
-------- -------
above: (1) if the common shares of such Person are not at such time and have not
been continuously over the preceding 12-month period registered under Section 12
of the Exchange Act, and such Person is a direct or indirect Subsidiary of
another Person the common shares of which are and have been so registered,
"Principal Party" shall refer to such other Person; (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one Person, the common shares
of two or more of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the common shares having the
greatest aggregate market value; and (3) in case such Person is owned, directly
or indirectly, by a joint venture formed by two or more Persons that are not
owned, directly or indirectly, by the same Person, the rules set forth in (1)
and (2) above shall apply to each of the chains of ownership having an interest
in such joint venture as if such party were a "Subsidiary" of both or all of
such joint venturers and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio as their direct or
indirect interests in such Person bear to the total of such interests.
21
(c) The Trust shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have sufficient common shares
authorized to permit the full exercise of the Rights and prior thereto the Trust
and such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in paragraph
(a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, and
will use its best efforts to cause such registration statement to (A)
become effective as soon as practicable after such filing and (B)
remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;
(ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all respects with the requirements for registration on Form
10 under the Exchange Act; and
(iii) take such actions as may be necessary or appropriate under
the blue sky laws of the various states.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that one of the
transactions described in this Section 13(a) shall occur at any time after the
occurrence of a transaction described in Section 11(a)(ii) hereof, the Rights
which have not theretofore been exercised shall thereafter become exercisable in
the manner described in Section 13(a) hereof.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Trust shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there may be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the NYSE or, if the Rights are
not listed or admitted to trading on the NYSE, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so
22
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Rights selected by the Board of Trustees. If on any such date no
such market maker is making a market in the Rights, the fair value of the Rights
on such date as determined in good faith by the Board of Trustees shall be used
or, if at the time of such determination there is an Acquiring Person, by a
majority of the members of the Board of Trustees then in office who are not
Future Trustees, or if there are no such members who are not Future Trustees, by
a nationally recognized investment banking firm selected by the Board of
Trustees, which shall have the duty to make such determination in a reasonable
and objective manner, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes.
(b) The Trust shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-hundredth
of a Preferred Share) upon exercise of the Rights or to distribute certificates
which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredth of a Preferred Share
may, at the election of the Trust, be evidenced by depositary receipts, pursuant
to an appropriate agreement between the Trust and a depositary selected by it;
provided, that such agreement shall provide that the holders of such depositary
--------
receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-hundredth of a Preferred Share, the Trust may, to
the extent necessary to reduce such fraction to an integral multiple of one
one-hundredth, pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one one-hundredth of a Preferred Share.
For the purposes of this Section 14(b), the current market value of one
one-hundredth of a Preferred Share shall be one one-hundredth of the closing
price of a Preferred Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) Following the occurrence of a Triggering Event, the Trust shall
not be required to issue fractions of Common Shares upon exercise of the Rights
or to distribute certificates which evidence fractional Common Shares. In lieu
of fractional Common Shares, the Trust may pay to the registered holders of
Right Certificates at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
Common Share. For purposes of this Section 14(c), the current market value of
one Common Share shall be the closing price of one Common Share (as determined
pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above). The Rights Agent shall have no
duty or obligation with respect to this Section 14 and
23
Section 24 below unless and until it has received specific instructions (and
sufficient cash to make payments in lieu of issuing fractional shares, if
required) from the Trust with respect to its duties or obligations under such
Sections.
Section 15. Rights of Action. All rights of action in respect of this
----------------
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Trust to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific performance of
the obligations under, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
--------------------------
accepting the same, consents and agrees with the Trust and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer;
(c) the Trust and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Trust or the Rights Agent) for all
purposes whatsoever, and neither the Trust nor the Rights Agent shall be
affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Trust nor the Rights Agent shall have any liability to any holder of
a Right or any other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, judgment, decree or ruling (whether interlocutory or
final) issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency
24
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
-------------------------------------------------
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or any
other securities of the Trust which may at any time be issuable on the exercise
of the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Trust or any
right to vote for the election of trustees or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any trust
action, or to receive notice of meetings or other actions affecting shareholders
(except as provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent. The Trust agrees to pay to the
---------------------------
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the preparation, delivery,
amendment, administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Trust also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, damage,
judgment, fine, penalty, claim, demand, settlement, cost or expenses (including,
without limitation, the reasonable fees and expenses of legal counsel), incurred
without gross negligence, bad faith or willful misconduct on the part of the
Rights Agent for any action taken, suffered or omitted by the Rights Agent in
connection with the acceptance, administration, exercise and performance of this
Agreement, including the costs and expenses of defending against any claim of
liability in the premises. The costs and expenses incurred in enforcing this
right of indemnification shall be paid by the Trust. The provisions of this
Section 18 and Section 20(c) below shall survive the termination of this
Agreement, the exercise or expiration of the Rights or the resignation or
removal of the Rights Agent.
The Rights Agent shall be authorized and protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its acceptance and administration of this Agreement and the
exercise and performance of its duties hereunder in reliance upon any Right
Certificate or certificate for the Preferred Shares or Common Shares or for
other securities of the Trust, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
---------------------------------------------------------
Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Rights Agent
25
or any successor Rights Agent shall be a party, or any Person succeeding to the
stock transfer business of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided, that such Person would be eligible for appointment as a
--------
successor Rights Agent under the provisions of Section 21 hereof. In case at the
time such successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but not
delivered; any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Rights and Duties of Rights Agent. The Rights Agent
---------------------------------
undertakes the duties and obligations expressly imposed by this Agreement (and
no implied duties) upon the following terms and conditions, by all of which the
Trust and the holders of Right Certificates, by their acceptance thereof, shall
be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Trust or legal counsel for the Rights Agent), and the opinion of
such counsel shall be full and complete authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability for or in respect of
any action taken, suffered or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of the current per share market price) be proved or established by
the Trust prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, Chief Executive Officer, any President,
any Executive Vice President or Vice President, or the Secretary of the Trust
and delivered to the Rights Agent; and such certificate shall be full and
complete authorization to the Rights Agent and the Rights Agent shall incur no
liability for or in respect of any
26
action taken, suffered or omitted in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Trust and any
other Person only for its own gross negligence, bad faith or willful misconduct.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited to
lost profits), even if the Rights Agent has been advised of the likelihood of
such loss or damage and regardless of the form of the action.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Trust only.
(e) The Rights Agent shall not have any liability for or be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Trust of any covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the exercisability of
the Rights (including the Rights becoming void pursuant to Section 7(e) hereof)
or any adjustment in the terms of the Rights (including the manner, method or
amount thereof) provided for in Sections 3, 11, 13, 23 or 24 hereof, or the
ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right
Certificates after receipt of a certificate furnished pursuant to Section 12
hereof describing a change or adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Preferred Shares or Common Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any Preferred Shares or
Common Shares will, when issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Trust agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, Chief Executive Officer, any President, any
Executive Vice President or Vice President, or the Secretary of the Trust, and
to apply to such officers for advice or instructions in connection with its
duties, and such instructions or advice shall be full and complete authorization
and protection and the Rights
27
Agent shall not be liable for any action taken, suffered or omitted by it in
good faith in accordance with such advice or instructions of any such officer or
for any delay in acting while waiting for those instructions. Any application by
the Rights Agent for written instructions from the Trust may, at the option of
the Rights Agent, set forth in writing any action proposed to be taken, suffered
or omitted by the Rights Agent under this Agreement and the date on and/or after
which such action shall be taken or suffered or such omission shall be
effective. The Rights Agent shall not be liable for any action taken by,
suffered by, or omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date specified in such
application (which date shall not be less than five Business Days after the date
any officer of the Trust actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless, prior to
taking or suffering any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written instructions in response
to such application specifying the action to be taken, suffered or omitted.
(h) The Rights Agent and any stockholder, affiliate, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Trust or its Subsidiaries or become pecuniarily
interested in any transaction in which the Trust or its Subsidiaries may be
interested, or contract with or lend money to the Trust or its Subsidiaries or
otherwise act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent or any such
stockholder, affiliate, director, officer or employee from acting in any other
capacity for the Trust or its Subsidiaries or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself (through
its directors, officers and employees) or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or for any loss
to the Trust resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment
thereof.
(j) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Trust.
(k) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
Section 21. Change of Rights Agent. The Rights Agent or any successor
----------------------
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Trust and to each transfer agent
of the Common Shares or Preferred Shares by registered or
28
certified mail, and to the holders of the Right Certificates by first-class
mail. The Trust may remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Trust shall appoint a
successor to the Rights Agent. If the Trust shall fail to make such appointment
within a period of 30 days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Trust),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Trust or by such a court, shall be a
Person or bank organized and doing business under the laws of the United States
or of any other state of the United States, which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $100 million. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Trust shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares or Preferred Shares, and mail a notice thereof in writing to
the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of
----------------------------------
the provisions of this Agreement or of the Rights to the contrary, the Trust
may, at its option, issue new Right Certificates evidencing Rights in such form
as may be approved by the Board of Trustees to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.
Section 23. Redemption.
----------
(a) The Board, by the affirmative vote of the Board of Trustees, may,
at its option, at any time prior to such time as any Person becomes an Acquiring
Person, redeem all but not less than all the then outstanding Rights at a
redemption price of $0.001 per Right, appropriately adjusted to reflect any
share split, share dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price"); provided, however, that if the Board of Trustees of the Trust
-------- -------
authorizes redemption of the Rights after the time a Person becomes an Acquiring
Person, then there must be then in office members of the Board of Trustees
29
who are not Future Trustees and such authorization shall require the approval of
at least a majority of such members who are not Future Trustees. The preceding
sentence notwithstanding, prior to the expiration of the period during which the
Rights may be redeemed as specified therein (or such longer period as the Board
of Trustees of the Trust may select pursuant to this sentence), the Board of
Trustees of the Trust may extend, one or more times, the period during which the
Rights may be redeemed beyond the close of business on the tenth day following
the Shares Acquisition Date; provided, however, that there must be then in
-------- -------
office members of the Board of Trustees who are not Future Trustees and any such
extension shall require the approval of at least a majority of such members who
are not Future Trustees. The Trust may, at its option, pay the Redemption Price
in cash, Common Shares (based on the current per share market price of the
Common Shares at the time of redemption) or any other form of consideration
deemed appropriate by the Board of Trustees.
The redemption of the Rights by the Board of Trustees may be made effective at
such time on such basis and with such conditions as the Board of Trustees in its
sole discretion may establish.
(b) Immediately upon the action of the Board of Trustees ordering the
redemption of the Rights (or at the effective time of such redemption
established by the Board of Trustees pursuant to the last sentence of paragraph
(a) of this Section 23), and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price. The Trust shall
promptly give public notice of any such redemption (with prompt written notice
thereof to the Rights Agent); provided, however, that the failure to give, or
-------- -------
any defect in, any such notice shall not affect the validity of such redemption.
Within 10 days after such action of the Board of Trustees ordering the
redemption of the Rights or, if later, the effectiveness of the redemption of
the Rights pursuant to the last sentence of paragraph (a), the Trust shall mail
a notice of redemption to all the holders of the then outstanding Rights at
their last addresses as they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the transfer agent
for the Common Shares. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made. The Trust may, at its option, discharge all of
its obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights, (ii) depositing with a bank
or trust company having a capital and surplus of at least $100,000,000, funds
necessary for such redemption, in trust, to be applied to the redemption of the
Rights so called for redemption and (iii) arranging for the mailing of the
Redemption Price to the registered holders of the Rights; then, and upon such
action, all outstanding Right Certificates shall be null and void without
further action by the Trust. Neither the Trust nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23, in Section
24 hereof, or in connection with the purchase of Common Shares prior to the
Distribution Date.
30
Section 24. Exchange.
---------
(a) The Board of Trustees may, at its option, at any time after a
Triggering Event, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 7(e) hereof) for Common Shares at an exchange ratio of one
Common Share per Right, appropriately adjusted to reflect any share split, share
dividend or similar transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio"). Notwithstanding
the foregoing, the Board of Trustees shall not be empowered to effect such
exchange at any time after any Person (other than the Trust, any Subsidiary of
the Trust, any employee benefit plan of the Trust or of any Subsidiary of the
Trust or any entity holding Common Shares for or pursuant to the terms of any
such plan), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Trustees ordering the
exchange of any Rights pursuant to paragraph (a) of this Section 24 and without
any further action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such Rights shall
be to receive that number of Common Shares equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Trust shall promptly
give public notice of any such exchange (with prompt written notice thereof to
the Rights Agent); provided, however, that the failure to give, or any defect
--------- --------
in, such notice shall not affect the validity of such exchange. The Trust
promptly shall mail a notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Common Shares for
Rights will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become null and void
pursuant to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In any exchange pursuant to this Section 24, the Trust, at its
option, may substitute Preferred Shares (or equivalent preferred shares, as such
term is defined in Section 11(b) hereof) for Common Shares exchangeable for
Rights, at the initial rate of one one-hundredth of a Preferred Share (or
equivalent preferred share) for each Common Share, as appropriately adjusted to
reflect adjustments in the voting rights of the Preferred Shares pursuant to the
terms thereof, so that the fraction of a Preferred Share delivered in lieu of
each Common Share shall have the same voting rights as one Common Share.
(d) In the event that there shall not be sufficient Common Shares or
Preferred Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Trust shall take all such action as may be
31
necessary to authorize additional Common Shares or Preferred Shares for issuance
upon exchange of the Rights.
(e) The Trust shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares. In
lieu of such fractional Common Shares, the Trust shall pay to the registered
holders of the Right Certificates with regard to which such fractional Common
Shares would otherwise be issuable an amount in cash equal to the same fraction
of the current market value of a whole Common Share. For the purposes of this
paragraph (e), the current market value of a whole Common Share shall be the
closing price of a Common Share (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
------------------------
(a) In case the Trust shall propose at any time after the Distribution
Date (i) to pay any dividend payable in shares of any class to the holders of
its Preferred Shares or to make any other distribution to the holders of its
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of any class or any other
securities, rights or options, (iii) to effect any reclassification of its
Preferred Shares (other than a reclassification involving only the subdivision
of outstanding Preferred Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Trust and its
Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Trust, or (vi) to declare or pay
any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Trust shall give to the Rights Agent and each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the purposes of
such share dividend, or distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the record date
for determining holders of the Preferred Shares for purposes of such action, and
in the case of any such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case any of the events set forth in Section 11(a)(ii) hereof
shall occur, then the Trust shall as soon as practicable thereafter give to the
Rights Agent and each holder of a Right Certificate, in accordance with Section
26 hereof, a notice of the occurrence of such event, which notice shall describe
such event and the consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
32
Section 26. Notices. Notices or demands authorized by this Agreement to
-------
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Trust shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Archstone-Xxxxx Trust
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Trust or by the holder
of any Right Certificate to or on the Rights Agent shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Trust) as follows:
Mellon Investor Services LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxx Xxxxxx
With a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Notices or demands authorized by this Agreement to be given or made by the Trust
or the Rights Agent to the holder of any Right Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry books of the
Trust. Notices or demands sent by mail in accordance with this Section 26 shall
be deemed given or made three Business Days after the date on which they are
sent.
Section 27. Supplements and Amendments. The Trust, by the affirmative
--------------------------
vote of the Board of Trustees, may from time to time supplement or amend this
Agreement without the approval of any holders of Right Certificates in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make or change any other provisions with respect to the Rights (including,
without limitation, changes to the Purchase Price) which the Trust may deem
necessary or desirable, any such supplement or amendment to be evidenced by a
writing signed by the Trust and the Rights Agent; provided, however, that from
-------- -------
and after such time as any Person becomes an Acquiring Person, this Agreement
shall not be amended in any manner which would adversely affect the interests of
the holders of Rights. Notwithstanding anything in this Agreement to the
contrary, no supplement or
33
amendment that changes the rights and duties of the Rights Agent under this
Agreement will be effective against the Rights Agent without the execution of
such supplement or amendment by the Rights Agent. Notwithstanding anything
herein to the contrary, any supplement or amendment to this Agreement after the
time that any Person becomes an Acquiring Person shall require the affirmative
vote of a majority of the members of the Board of Trustees who are not Future
Trustees.
Section 28. General Limitations on Redemption, Modification or
--------------------------------------------------
Termination of Rights or Amendment to Agreement. Notwithstanding any provision
-----------------------------------------------
of this Agreement to the contrary, in addition to any other approval that may be
necessary, any redemption, modification or termination of the Rights, or any
amendment to this Agreement, requiring the approval of the Board of Trustees
must be approved by a majority of the members of the Board of Trustees who are
not Future Trustees.
Section 29. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Trust or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any Person other than the Trust, the Rights Agent and
the registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares) any legal or equitable right, remedy or claim under
this Agreement; and this Agreement shall be for the sole and exclusive benefit
of the Trust, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares).
Section 31. Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 32. Governing Law. This Agreement and each Right Certificate
-------------
issued hereunder 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 entirely within such State, except that those provisions of this
Agreement affecting the rights, duties and responsibilities of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State.
Section 33. Counterparts. This Agreement may be executed in any number
------------
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
34
Section 34. Descriptive Headings. Descriptive headings of the several
--------------------
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 35. Determinations and Actions by the Board of Trustees. The
---------------------------------------------------
Board of Trustees shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the
Board of Trustees or the Trust or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (a) interpret the provisions of this Agreement, and (b) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend this Agreement). All such actions, interpretations and determinations
(including, for purpose of clause (b) above, all omissions with respect to the
foregoing) which are done or made by the Board of Trustees in good faith, shall
(x) be final, conclusive and binding on the Trust, the Rights Agent, the holders
of the Right Certificates and all other parties, and (y) not subject the Board
of Trustees to any liability to the holders of the Right Certificates. The
Rights Agent shall be entitled to assume that the Board of Trustees has acted in
good faith with respect to any such actions, interpretations and determinations.
Section 36. Limitation of Liability. Any obligation or liability
-----------------------
whatsoever of the Trust which may arise at any time under this Agreement or any
obligation or liability which may be incurred by it pursuant to any other
instrument, transaction or undertaking contemplated hereby shall be satisfied,
if at all, out of the Trust's assets only. To the maximum extent permissible
under Maryland law, no such obligation or liability shall be personally binding
upon, nor shall resort for the enforcement thereof had to, the property of any
of its shareholders, Trustees, officers, employees or agents, regardless of
whether such obligations or liability is in the nature of contract, tort or
otherwise.
35
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.
ARCHSTONE-XXXXX TRUST
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
Attest:
By: /s/ Xxxx X. Xxxx
----------------------------
Name: Xxxx X. Xxxx
Title: Assistant Secretary
MELLON INVESTOR SERVICES LLC
By: /s/ Xxx X. Xxxxxx
----------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
36
Exhibit A
---------
SERIES B JUNIOR PARTICIPATING PREFERRED SHARES
OF BENEFICIAL INTEREST
(a) Designation and Amount. There shall be a series of preferred shares of
the Trust, $0.01 par value per share, which shall be designated "Series B Junior
Participating Preferred Shares" (the "Series B Preferred Shares"), and the
number of shares constituting that series shall be 4,500,000. Such number of
shares may be increased or decreased by resolution of the Board of Trustees and
by the filing of articles supplementary in accordance with the provisions of
Title 8 of the Corporations and Associations Article of the Code of Maryland
stating that such increase or reduction has been so authorized; provided,
---------
however, that no decrease shall reduce the number of Series B Preferred Shares
--------
to a number less than the number of Series B Preferred Shares then outstanding
plus the number of Series B Preferred Shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Trust.
(b) Dividends and Distributions.
(i) Subject to the prior and superior rights of the holders of any shares
of any class or series of preferred shares of the Trust ranking prior and
superior to the Series B Preferred Shares with respect to dividends, the holders
of Series B Preferred Shares shall be entitled to receive, when, as and if
declared by the Board of Trustees out of funds legally available for the
purpose, quarterly dividends payable in cash to holders of record on the last
Business Day of January, April, July and October in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a Series B
Preferred Share or fraction thereof, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in Common Shares (hereinafter defined) or a subdivision of the
outstanding Common Shares (by a reclassification or otherwise), authorized on
the common shares of beneficial interest, $0.01 par value per share, of the
Trust (the "Common Shares") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any Series B Preferred Share or fraction thereof. In
the event the Trust shall at any time following August 31, 2001 (i) declare any
dividend on Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the amount to which holders of
Series B Preferred Shares were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying each such
amount by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
(ii) The Trust shall declare a dividend or distribution on the Series
B Preferred Shares as provided in paragraph (A) above at the time it declares a
dividend or distribution on the Common Shares (other than a dividend payable in
Common Shares).
(iii) No dividend or distribution (other than a dividend or
distribution payable in Common Shares) shall be paid or payable to the holders
of Common Shares unless, prior thereto, all accrued but unpaid dividends to the
date of that dividend or distribution shall have been paid to the holders of
Series B Preferred Shares.
(iv) Dividends shall begin to accrue and be cumulative on outstanding
Series B Preferred Shares from the Quarterly Dividend Payment Date next
preceding the date of issuance of such Series B Preferred Shares, unless the
date of issuance of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issuance of such shares, or
unless the date of issuance is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of Series B Preferred
Shares entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the Series B
Preferred Shares in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by- share basis among all such shares at the time outstanding. The Board
of Trustees may fix a record date for the determination of holders of Series B
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
(c) Voting Rights. The holders of Series B Preferred Shares shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each one one-hundredth of a Series B Preferred Share shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders of
the Trust. In the event the Trust shall at any time following August 31, 2001
(i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the number of
votes per share to which holders of Series B Preferred Shares were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or required by law, the
holders of Series B Preferred Shares and the holders of Common Shares and any
other shares of beneficial interest of
2
the Trust having general voting rights shall vote together as one class on all
matters submitted to a vote of shareholders of the Trust.
(C) (i) Whenever, at any time or times, dividends payable on any
Series B Preferred Shares shall be in arrears in an amount equal to at
least six full quarterly dividends (whether or not declared and whether
or not consecutive), the holders of record of the outstanding Series B
Preferred Shares shall have the exclusive right, voting separately as a
single class, to elect two trustees of the Trust at a special meeting
of shareholders of the Trust or at the Trust's next annual meeting of
shareholders, and at each subsequent annual meeting of shareholders, as
provided below. At elections for such trustees, the holders of Series B
Preferred Shares shall be entitled to cast one vote for each one
one-hundredth of a Series B Preferred Share held, subject to
adjustment.
(ii) Upon the vesting of such right of the holders of the
Series B Preferred Shares, the maximum authorized number of members of
the Board of Trustees shall automatically be increased by two and the
two vacancies so created shall be filled by vote of the holders of the
outstanding Series B Preferred Shares as hereinafter set forth. A
special meeting of the shareholders of the Trust then entitled to vote
shall be called by the Chairman of the Board, the President or the
Chief Executive Officer of the Trust, if requested in writing by the
holders of record of not less than 10% of the Series B Preferred Shares
then outstanding. At such special meeting, or, if no such special
meeting shall have been called, then at the next annual meeting of
shareholders of the Trust, the holders of the Series B Preferred Shares
shall elect, voting as above provided, two trustees of the Trust to
fill the aforesaid vacancies created by the automatic increase in the
number of members of the Board of Trustees. At any and all such
meetings for such election, the holders of a majority of the
outstanding Series B Preferred Shares shall be necessary to constitute
a quorum for such election, whether present in person or by proxy, and
such two trustees shall be elected by the vote of at least a plurality
of shares held by such shareholders present or represented at the
meeting. Any trustee elected by holders of Series B Preferred Shares
pursuant to this Section may be removed at any annual or special
meeting, by vote of the holders of a majority of the Series B Preferred
Shares, with or without cause. In case any vacancy shall occur among
the trustees elected by the holders of the Series B Preferred Shares
pursuant to this Section, such vacancy may be filled by the remaining
trustee so elected, or his successor then in office, and the trustee so
elected to fill such vacancy shall serve until the next meeting of
shareholders for the election of trustees. After the holders of the
Series B Preferred Shares shall have exercised their right to elect
trustees in any default period and during the continuance of such
period, the number of trustees shall not be further increased or
decreased except by vote of the holders of Series B Preferred Shares as
herein provided or pursuant to the rights of any equity securities
ranking senior to or pari passu with the Series B Preferred Shares.
---- -----
3
(iii) The right of the holders of the Series B Preferred
Shares, voting separately as a class, to elect two members of the Board
of Trustees as aforesaid shall continue until, and only until, such
time as all arrears in dividends (whether or not declared) on the
Series B Preferred Shares shall have been paid or declared and set
apart for payment, at which time such right shall terminate, except as
herein or by law expressly provided, subject to revesting in the event
of each and every subsequent default of the character above-mentioned.
Upon any termination of the right of the holders of the Series B
Preferred Shares as a class to vote for trustees as herein provided,
the term of office of all trustees then in office elected by the
holders of Series B Preferred Shares pursuant to this Section shall
terminate immediately. Whenever the term of office of the trustees
elected by the holders of the Series B Preferred Shares pursuant to
this Section shall terminate and the special voting powers vested in
the holders of the Series B Preferred Shares pursuant to this Section
shall have expired, the maximum number of members of the Board of
Trustees shall be such number as may be provided for in the Bylaws of
the Trust irrespective of any increase made pursuant to the provisions
of this Section.
(D) Except as otherwise provided herein or required by law, holders
of Series B Preferred Shares shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Shares as provided herein) for taking any trust action.
(d) Certain Restrictions.
(A) Whenever any quarterly dividends or other dividends or
distributions payable on the Series B Preferred Shares as provided in Section 2
are in arrears, then, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series B Preferred Shares outstanding
shall have been paid in full, the Trust shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred
Shares, other than dividends paid or payable in such junior shares;
(ii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series B
Preferred Shares, except dividends paid ratably on the Series B
Preferred Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series
4
B Preferred Shares, provided that the Trust may at any time redeem,
purchase or otherwise acquire any such parity shares in exchange for
shares of the Trust ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B Preferred
Shares; or
(iv) purchase or otherwise acquire for consideration any
Series B Preferred Shares, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Trustees) to all holders of such shares upon such terms as the Board of
Trustees, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Trust shall not permit any subsidiary of the Trust to
purchase or otherwise acquire for consideration any shares of the Trust unless
the Trust could, under paragraph (A) of this Section, purchase or otherwise
acquire such shares at such time and in such manner.
(e) Reacquired Shares. Any Series B Preferred Shares purchased or
otherwise acquired by the Trust in any manner whatsoever shall become authorized
but unissued shares of beneficial interest and may be reissued as Common Shares
or as part of a new series of preferred shares to be created by resolution or
resolutions of the Board of Trustees, subject to the conditions and restrictions
on issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up. (A) Upon any voluntary
liquidation, dissolution or winding up of the Trust, no distribution shall be
made to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Shares unless,
prior thereto, the holders of Series B Preferred Shares shall have received
$1.00 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"Series B Liquidation Preference"). Following the payment of the full amount of
the Series B Liquidation Preference, no additional distributions shall be made
to the holders of Series B Preferred Shares unless, prior thereto, the holders
of Common Shares shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series B
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as share splits, share dividends and
recapitalizations with respect to the Common Shares) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of the
Series B Liquidation Preference and the Common Adjustment in respect of all
outstanding Series B Preferred Shares and Common Shares, respectively, holders
of Series B Preferred Shares and holders of Common Shares shall receive their
ratable and proportionate share of the remaining assets to be distributed in the
ratio, on a per share basis, of the Adjustment Number to 1 with respect to such
Series B Preferred Shares and Common Shares, on a per share basis, respectively.
5
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series B Liquidation Preference and
the liquidation preferences of all other series of preferred shares, if any,
which rank on a parity with the Series B Preferred Shares, then such remaining
assets shall be distributed ratably to the holders of the Series B Preferred
Shares and such parity shares in proportion to their respective liquidation
preferences.
(C) In the event the Trust shall at any time following August 31,
2001 (i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Trust shall enter into
any consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other shares or securities, cash and/or
any other property, then in any such case, the Series B Preferred Shares shall
at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of shares, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each Common Share
is exchanged or changed. In the event the Trust shall at any time (i) declare
any dividend on Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of Series B Preferred
Shares shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(h) Redemption. The Series B Preferred Shares shall not be
redeemable by the Trust. The preceding sentence shall not limit the ability of
the Trust to purchase or otherwise deal in such shares to the extent permitted
by law.
(i) Ranking. The Series B Preferred Shares shall rank junior to all
other series of the Trust's preferred shares (whether with or without par value)
as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
(j) Amendment. Neither the Trust's Declaration of Trust, nor any
articles supplementary relating to the Series B Preferred Shares shall be
amended in any manner which would materially alter or change the powers,
preferences, rights or other terms of the Series B Preferred Shares so as to
affect the holders of Series B Preferred Shares adversely without the
affirmative vote of the
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holders of a majority or more of the outstanding Series B Preferred Shares,
voting separately as a class.
(k) Fractional Shares. Series B Preferred Shares may be issued in
fractions of a share that are integral multiples of one-one hundredth of a
share, which shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends and participate in
distributions and to have the benefit of all other rights of holders of Series B
Preferred Shares.
Exhibit B
---------
[Form of Right Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER AUGUST 31, 2011 OR EARLIER IF THE RIGHTS EXPIRE
UNDER CERTAIN CIRCUMSTANCES OR ARE EXCHANGED OR REDEEMED BY THE TRUST.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE TRUST, AT
$0.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON
(AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS EVIDENCED
BY THIS RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON
WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF
AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS
EVIDENCED HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]*
Right Certificate
ARCHSTONE-XXXXX TRUST
This certifies that ______________________________ , or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of August 31, 2001 (the "Rights
Agreement"), between Archstone-Xxxxx Trust, a Maryland real estate investment
trust (the "Trust"), and Mellon Investor Services LLC, a New Jersey limited
liability company (the "Rights Agent") to purchase from the Trust at any time
after the Distribution Date (as such term is defined in the Rights Agreement)
and prior to 5:00 p.m. (Eastern time) on August 31, 2011 or notice of redemption
or
_____________________________
* The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
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exchange at the office of the Rights Agent (or its successors as Rights Agent)
designated for such purpose, one one-hundredth of a fully paid, non-assessable
Series B Junior Participating Preferred Share (a "Preferred Share") of the
Trust, at a purchase price of $75.00 per one one-hundredth of a Preferred Share
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the appropriate Form of Election to Purchase and related
Certificate duly executed. The number of Rights evidenced by this Right
Certificate (and the number of Preferred Shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per Preferred Share
set forth above, are the number and Purchase Price as of the Record Date (as
defined in the Rights Agreement), based on the Preferred Shares as constituted
at such date. Capitalized terms not defined in this Right Certificate that are
defined in the Rights Agreement shall have the meanings ascribed to them in the
Rights Agreement.
Upon the occurrence of a Triggering Event, if the Rights evidenced by
this Right Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person, (ii) under certain
circumstances specified in the Rights Agreement, a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and no holder hereof
shall have any right with respect to such Rights from and after the occurrence
of any such Triggering Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of Preferred Shares or other securities, which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Trust and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under certain circumstances specified in such Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal corporate trust office of the Rights Agent, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like aggregate number
of Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
3
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Trust at its option at a redemption
price of $0.001 per Right at any time prior to the earlier of (i) such time as
any Person becomes an Acquiring Person or (ii) the close of business on the
Final Expiration Date.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Trust, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Preferred Shares
or of any other securities of the Trust which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Trust or any right to vote for the election of trustees or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any trust action, or, to receive notice of meetings or other
actions affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
4
WITNESS the facsimile signature of the proper officers of the Trust and
its seal.
Dated as of _______________ __, 20__
ARCHSTONE-XXXXX TRUST
By: ____________________________
Name:
Title:
Attest: (SEAL)
By: _______________________________________
Name:
Title:
Countersigned:
MELLON INVESTOR SERVICES LLC
By: _______________________________________
Authorized Signature
5
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder desires to
transfer the Right Certificate.)
FOR VALUE RECEIVED __________________________________________________________
hereby sells, assigns and transfers unto _______________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Trust, with full power of substitution.
Date: ______________________, 20__ _____________________________________
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [_] is [_] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [_]
did [_] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Date: ______________________, 20__ _____________________________________
Signature
NOTICE
------
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the Right
Certificate.)
To: ARCHSTONE-XXXXX TRUST
The undersigned hereby irrevocably elects to exercise _________ Rights
evidenced by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of the Rights (or such other securities of the Trust or of any
other person which may be issuable upon the exercise of the Rights) and requests
that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number: _________________________________________
__________________________________________________________________
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
Please insert social security
or other identifying number:_________________________________________
__________________________________________________________________
(Please print name and address)
Date: ______________________, 20__ _____________________________________
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [_] are [_] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[_] did [_] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Date: ______________________, 20__ _____________________________________
Signature
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
