EXHIBIT 1
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FEDERAL REALTY INVESTMENT TRUST
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
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Amended and Restated Rights Agreement
Dated as of March 11, 1999
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TABLE OF CONTENTS
Page
Section 1. Certain Definitions............................................... 2
Section 2. Appointment of Rights Agent....................................... 7
Section 3. Issue of Rights Certificates...................................... 7
Section 4. Form of Rights Certificates....................................... 9
Section 5. Countersignature and Registration.................................10
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.......11
Section 7. Exercise of Rights, Purchase Price; Expiration Date of Rights.....12
Section 8. Cancellation and Destruction of Rights Certificates...............16
Section 9. Reservation and Availability of Common Shares.....................17
Section 10. Common Shares Record Date........................................18
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights..........................................................19
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.......29
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power................................................................29
Section 14. Additional Covenants.............................................33
Section 15. Fractional Rights and Fractional Shares..........................34
Section 16. Rights of Action.................................................36
Section 17. Agreement of Rights Holders......................................36
Section 18. Rights Certificate Holder Not Deemed a Shareholder...............37
Section 19. Concerning the Rights Agent......................................38
Section 20. Merger or Consolidation or Change of Name of Rights Agent........38
Section 21. Duties of Rights Agent...........................................39
Section 22. Change of Rights Agent...........................................42
Section 23. Issuance of New Rights Certificates..............................44
Section 24. Redemption and Termination.......................................44
Section 25. Exchange.........................................................47
Section 26. Notice of Certain Events.........................................48
Section 27. Notices..........................................................49
Section 28. Supplements and Amendments.......................................50
Section 29. Determination and Actions by the Board of Trustees, etc..........50
Section 30. Successors.......................................................51
Section 31. Benefits of this Agreement.......................................51
Section 32. Severability.....................................................51
Section 33. Governing Law....................................................52
Section 34. Counterparts.....................................................52
Section 35. Descriptive Headings.............................................52
Section 36. Non-Recourse.....................................................52
Exhibit A Form of Rights Certificate.......................................A-1
Exhibit B Form of Summary of Rights to Purchase Common Shares..............B-1
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RIGHTS AGREEMENT
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This Amended and Restated Agreement, dated as of March 11, 1999,
between Federal Realty Investment Trust, an unincorporated business trust
governed by the laws of the District of Columbia (the "Trust"), and American
Stock Transfer & Trust Company, a corporation having its principal office at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Rights Agent").
W I T N E S S E T H
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WHEREAS, on April 13, 1989, the Board of Trustees of the Trust
authorized and declared a dividend distribution of one Right (as hereinafter
defined) for each Common Share (as hereinafter defined) of the Trust outstanding
on April 24, 1989 (the "Record Date"), and contemplated the issuance of one
Right (subject to adjustment as provided herein) for each Common Share of the
Trust issued between the Record Date and the earlier of the Distribution Date
and the Expiration Date (as such terms are hereinafter defined), each Right
representing the right to purchase one Common Share of the Trust upon the terms
and subject to the conditions set forth in the Rights Agreement dated April 13,
1989 (the "Original Rights Agreement"), between the Trust and the predecessor
Rights Agent, The Xxxxx National Bank of Washington, D.C. (the "Rights");
WHEREAS, on March 11, 1999, the Board of Trustees of the Trust
determined that it was advisable and in the best interests of the Trust and its
shareholders to amend and restate the Original Rights Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
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following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, without the prior approval of the Trust, shall be the Beneficial
Owner (as such term is hereinafter defined) of securities representing 15% or
more of the Common Shares then outstanding, other than as a result of a
Permitted Offer (as such term is hereinafter defined), or who was such a
Beneficial Owner at any time after the date hereof, whether or not such Person
continues to be the Beneficial Owner of securities representing 15% or more of
the Common Shares then outstanding, provided, however, that for purposes of this
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Section 1(a), the effect of Section 6.12 of the Third Amended and Restated
Declaration of Trust of the Trust, or any successor provision, and actions taken
by the Board of Trustees of the Trust pursuant thereto, shall be disregarded.
Notwithstanding the foregoing, (A) the term Acquiring Person shall not include
(i) the Trust, (ii) any Subsidiary (as such term is hereinafter defined) of the
Trust, (iii) any employee benefit plan of the Trust or of any Subsidiary of the
Trust or (iv) any Person or entity organized, appointed or established by the
Trust or any Subsidiary of the Trust for or pursuant to the terms of any such
employee benefit plan and (B) no Person shall become an "Acquiring Person" (i)
as a result of the acquisition of Common Shares by the Trust which, by reducing
the number of Common Shares outstanding, increases the proportional number of
shares Beneficially Owned by such Person together with all Affiliates and
Associates of such Person, provided, that if (1) a Person would become an
Acquiring Person (but for the operation of this subclause (i)) as a result of
the acquisition of Common Shares by the Trust, and (2) after such share
acquisition by the Trust, such Person, or any Affiliate or Associate of such
Person, becomes the Beneficial Owner of any additional Common Shares (except as
the result of a stock split, stock dividend, recapitalization or similar
transaction), then such Person
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shall be deemed an Acquiring Person, or (ii) if (1) within five Business Days
after such Person would otherwise have become an Acquiring Person (but for the
operation of this subclause (ii)), such Person notifies the Board of Trustees
that such Person did so inadvertently, and (2) within two Business Days after
such notification (or such greater period of time as may be determined by action
of the Board of Trustees, but in no event greater than five Business Days), such
Person divests itself of a sufficient number of Common Shares so that such
Person is the Beneficial Owner of less than 15% of the outstanding Common
Shares.
(b) "Act" shall mean the Securities Act of 1933, as amended and in
effect on the date of this Agreement.
(c) "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 such term is hereinafter defined).
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed 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 has (A) the right or obligation to acquire (whether such
right or obligation is exercisable or effective immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person
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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
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exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
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however, that a Person shall not be deemed the "Beneficial Owner" of,
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or to "Beneficially Own," any security under this clause (B) 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 of
the Exchange Act and (2) is not also then reportable by such person on
Schedule 13D under the Exchange Act (or any comparable or successor
report); 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 or not in writing),
or with which such Person or any of such Person's Affiliates have
otherwise formed a group related to the acquisition, holding, voting
(except pursuant to a revocable proxy or consent as described in
clause (B) of subparagraph (ii) of this paragraph (d)) or disposing of
any securities of the Trust (other than customary agreements with and
between underwriters and selling group members with respect to a bona
fide public offering of securities). Notwithstanding anything in this
definition of Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's Beneficial
Ownership of securities of the Trust, 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.
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(e) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the District of Columbia are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M.,
District of Columbia time, on such date; provided, however, that if such date is
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not a Business Day it shall mean 5:00 P.M. District of Columbia time, on the
next succeeding Business Day.
(g) "Common Shares" when used with reference to the Trust shall mean
the Common Shares of beneficial interest, no par value, of the Trust, or, in the
event of a subdivision, combination or consolidation with respect to such Common
Shares, the Common Shares resulting from such subdivision, combination or
consolidation. "Common Shares" when used with reference to stock issued by any
Person other than the Trust shall mean the capital stock with the greatest
voting power, or the equity securities or other equity interest having power to
control or direct the management, of such Person or, if such Person is a
Subsidiary of another Person, of the Person which ultimately controls such
first-mentioned Person and which has issued and outstanding such capital stock,
equity securities or equity interests.
(h) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended and in effect on the date of this Agreement.
(j) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(k) "Permitted Offer" shall mean a tender or exchange offer for all
outstanding Common Shares at a price and on terms determined, prior to the
purchase of shares under such tender or exchange offer, by at least a majority
of the members of the Board of Trustees of the Trust who are not officers of the
Trust to be both adequate and
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otherwise in the best interests of the Trust and its shareholders (other than
the Person or any Affiliate or Associate thereof on whose behalf the offer is
being made) taking into account all factors that such Trustees may deem
relevant.
(l) "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, limited liability company or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
(m) "Purchase Price" shall have the meaning set forth in Section 4
hereof. As set forth in Section 7(b) hereof, the Purchase Price shall initially
be $65.00, subject to adjustment as provided herein.
(n) "Record Date" shall mean April 24, 1989.
(o) "Section 11(a)(ii) Event" shall mean any event described in
Section 11(a)(ii) hereof.
(p) "Section 13 Event" shall mean any event described in clause (x),
(y) or (z) of Section 13(a) hereof.
(q) "Shares Acquisition Date" shall mean the first date of public
announcement by the Trust or an Acquiring Person that an Acquiring Person has
become such, provided, that if such Person is determined not to have become an
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Acquiring Person pursuant to Section 1(a) hereof, then no Shares Acquisition
Date shall be deemed to have occurred.
(r) A "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, or which is
otherwise controlled by such Person.
(s) "Voting Power" shall mean the voting power of all securities of
the Trust then outstanding and generally entitled to vote for the election of
trustees of the Trust; provided, however, that for purposes of this Section
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1(s), the effect of Section 6.12 of the Third Amended and Restated Declaration
of Trust of the Trust, or any successor
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provision, and actions taken by the Board of Trustees of the Trust pursuant
thereto, shall be disregarded.
Section 2. Appointment of Rights Agent. The Trust hereby appoints the
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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. In the event the Trust appoints one or more Co-Rights
Agents, the respective duties of the Rights Agent and any Co-Rights Agents shall
be as the Trust shall determine.
Section 3. Issue of Rights Certificates.
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(a) Until the earlier of (i) the Shares Acquisition Date or (ii) the
tenth day after the date of the commencement of, or 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 of its Subsidiaries) to
commence (which intention to commence remains in effect for five business days
after such announcement), a tender or exchange offer which would result in such
Person becoming an Acquiring Person, unless such date is extended by the Board
of Trustees of the Trust (including any such date which is on or 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 shall
be evidenced (subject to the provisions of paragraph (b) of this Section 3) by
the certificates for Common Shares registered in the names of the holders
thereof (which certificates for Common Shares shall be deemed also to be
certificates for Rights) and not by separate certificates, and (y) the Rights
(and the right to receive certificates therefor) shall be transferable only in
connection with the transfer of the underlying Common Shares (including a
transfer to the Trust); provided, however, that if a tender offer is terminated
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prior to the occurrence of a Distribution Date, then no Distribution Date shall
occur as a result of such tender offer. As soon as practicable after the
Distribution Date, the Rights Agent shall send by first-class, insured, postage
prepaid mail, to each record holder of
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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 certificate for
Rights, in substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each Common Share so held. As of and
after the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) With respect to certificates for Common Shares outstanding as of the
date of this Agreement, until the Distribution Date (or earlier redemption,
expiration or termination of the Rights), the Rights will be evidenced by such
certificates for Common Shares and the registered holders of Common Shares shall
also be the registered holders of the associated Rights. Until the Distribution
Date (or earlier redemption, expiration or termination of the Rights), the
surrender for transfer of any of the certificates for Common Shares outstanding
on or after the Record Date shall also constitute the transfer of the Rights
associated with the Common Shares represented by such certificate or
certificates. Upon the request of the holder of any Common Shares or, after the
Distribution Date, the holder of any Rights, the Trust shall, at its expense,
provide a copy of a Summary of Rights, in substantially the form attached hereto
as Exhibit B (the "Summary of Rights").
(c) Certificates issued for Common Shares (including, without
limitation, certificates issued upon transfer or exchange of Common Shares) or
reacquired Common Shares referred to in the last sentence of this paragraph (c)
or Common Shares which become outstanding after the date of this Agreement, but
prior to the earlier of the Distribution Date or the Expiration Date (as such
term is hereinafter defined), shall be deemed also to be certificates for
Rights, and shall have impressed, printed, stamped, written or otherwise affixed
onto them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Amended and Restated Rights
Agreement between Federal Realty Investment Trust and American Stock
Transfer & Trust Company (the "Rights
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Agent") dated as of March 11, 1999 (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 Federal Realty Investment
Trust. Under certain circumstances, as set forth in the Rights
Agreement, such Rights may be redeemed, may expire, or may be
evidenced by separate certificates and will no longer be evidenced by
this certificate. Federal Realty Investment Trust will mail to the
holder of this certificate a copy of the Rights Agreement without
charge within five days 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 defined in the Rights
Agreement) and certain related persons whether currently held by or on
behalf of such Person or by any subsequent holder of such Rights may
become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate or certificates. In the event that the Trust purchases or acquires
any Common Shares 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 Rights Certificates.
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(a) The Rights Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Trust
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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 23 hereof,
the Rights Certificates, whenever distributed, on their face shall entitle the
holders thereof to purchase such number of Common Shares as shall be set forth
therein at the price per share set forth therein (the "Purchase Price"), but the
number of such shares and the Purchase Price shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section
23 hereof that represents Rights which are null and void pursuant to Section
7(e) of this Agreement and any Rights Certificate issued pursuant to Section 6
or Section 11 upon transfer, exchange, replacement or adjustment of any other
Rights Certificate referred to in this sentence, shall contain the following
legend:
The Rights represented by this Rights Certificate are or were
Beneficially Owned by a Person who was or became an Acquiring Person
or an Affiliate or an Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby are null and void.
The provisions of Section 7(e) of this Rights Agreement shall be operative
whether or not the foregoing legend is contained on any such Rights Certificate.
Section 5. Countersignature and Registration. The Rights Certificates
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shall be executed on behalf of the Trust by its Chairman of the Board, President
or any Vice President, either manually or by facsimile signature, and shall be
attested to by the Secretary or an Assistant Secretary of the Trust, either
manually or by facsimile signature. The Rights Certificates shall be
countersigned by the Rights Agent, either manually or by facsimile signature,
and shall not be valid for any purpose unless so countersigned. In
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case any officer of the Trust who shall have signed any of the Rights
Certificates shall cease to be such officer of the Trust before countersignature
by the Rights Agent and issuance and delivery by the Trust, such Rights
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 Rights Certificates had not ceased to be such officer of the
Trust; and any Rights Certificates may be signed on behalf of the Trust by any
person who, at the actual date of the execution of such Rights Certificate,
shall be a proper officer of the Trust to sign such Rights Certificate, although
at the date of the execution of this Rights Agreement any such person was not
such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at one of its offices, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates and the certificate
number and date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
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Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
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Subject to the provisions of Section 4(b), Section 7(e) and Section 15 hereof,
at any time after the Close of Business on the Distribution Date, and at or
prior to the Close of Business on the Expiration Date, any Rights Certificate or
Rights Certificates may be transferred, split up, combined or exchanged for
another Rights Certificate or Rights Certificates, entitling the registered
holder to purchase a like number of Common Shares as the Rights Certificate or
Rights Certificates surrendered then entitled such holder (or former holder, in
the case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Rights
Certificates shall make such request in writing delivered to the Rights Agent,
and shall surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined or exchanged at the principal office of the
Rights Agent. Neither the Rights Agent nor the Trust shall be obligated to take
any
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action whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Trust shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 15 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Trust may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or exchange of
Rights Certificates.
Upon receipt by the Trust and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Rights
Certificate, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and 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 Rights Certificate if mutilated, the Trust
will execute and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered holder in lieu of the
Rights 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
Rights 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 Rights Certificate, with the appropriate
form of election to purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the office of the Rights Agent designated
for such purposes, together with payment of the Purchase Price for each Common
Share (or such other number of shares or other securities) as to which the
surrendered Rights are exercised, at or prior to the earliest of (i) the Close
of Business on
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April 24, 2009 (the "Final Expiration Date"), or (ii) the time at which the
Rights are redeemed as provided in Section 24 hereof, or (iii) the time at which
the Rights are exchanged as provided in Section 25 hereof, or (iv) the
consummation of a transaction contemplated by Section 13(d) hereof (such
earliest time being herein referred to as the "Expiration Date").
Notwithstanding any other provision of this Agreement, any Person who prior to
the Distribution Date becomes a record holder of Common Shares may exercise all
of the rights of a registered holder of a Rights Certificate with respect to the
Rights associated with such Common Shares in accordance with and subject to the
provisions of this Agreement, including the provisions of Section 7(e) hereof,
as of the date such Person becomes a record holder of Common Shares.
(b) The Purchase Price for each Common Share pursuant to the exercise
of a Right shall initially be sixty-five dollars ($65.00), 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. Anything in this Agreement to the contrary
notwithstanding, 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 outstanding Common Shares payable in Common Shares or (ii)
effect a subdivision, combination or consolidation of the outstanding 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,
each Common Share outstanding following such subdivision, combination or
consolidation shall continue to have one Right associated therewith and the
Purchase Price following any such event shall be proportionately adjusted to
equal the result obtained by multiplying the Purchase Price immediately prior to
such event by a fraction the numerator of which shall be the total number of
Common Shares outstanding immediately prior to the occurrence of the event and
the denominator of which shall be the total number of Common Shares outstanding
immediately following the occurrence of
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such event. The adjustment provided for in the preceding sentence shall be made
successively whenever such a dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the appropriate form of election to purchase and related
certificate duly executed, accompanied by payment of the Purchase Price for the
shares (or other securities or property) to be purchased and an amount equal to
any applicable transfer tax (as determined by the Rights Agent) in cash, or by
certified check or bank draft payable to the order of the Trust, the Rights
Agent shall, subject to Section 21(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the Common Shares (or make available, if
the Rights Agent is the transfer agent) certificates for the number of Common
Shares to be purchased, and the Trust hereby irrevocably authorizes its transfer
agent to comply with all such requests, or (B) if the Trust, in its sole
discretion, shall have elected to deposit the Common Shares issuable upon
exercise of the Rights hereunder into a depositary, requisition from the
depositary agent depositary receipts representing such number of Common Shares
as are to be purchased (in which case certificates for the Common Shares
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Trust will direct the depositary agent to comply with
such request, (ii) when appropriate, requisition from the Trust the amount of
cash, if any, to be paid in lieu of issuance of fractional shares in accordance
with Section 15 hereof, (iii) promptly 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 Rights Certificate, registered in such name or names
as may be designated by such holder and (iv) when appropriate, after receipt
promptly deliver such cash to or upon the order of the registered holder of such
Rights Certificate. In the event that the Trust is obligated to issue other
securities of the Trust pursuant to Section 11(a) hereof, the Trust will make
all arrangements necessary so that such other securities are available for
distribution by the
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Rights Agent, if and when appropriate. In addition, in the case of an exercise
of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent
shall return such Rights Certificate to the registered holder thereof after
imprinting, stamping or otherwise indicating thereon that the rights represented
by such Rights Certificate no longer include the rights provided by Section
11(a)(ii) of the Rights Agreement and if less than all the Rights represented by
such Rights Certificate were so exercised, the Rights Agent shall indicate on
the Rights Certificate the number of Rights represented thereby which continue
to include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Rights Certificate shall
exercise (except pursuant to Section 11(a)(ii)) less than all the Rights
evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the
Rights remaining unexercised shall be issued by the Rights Agent and delivered
to the registered holder of such Rights Certificate or to his duly authorized
assigns, subject to the provisions of Section 15 hereof, or the Rights Agent
shall place an appropriate notation on the Rights Certificate with respect to
those Rights exercised.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11(a)(ii) Event, any 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 of any
Affiliate or Associate thereof) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person (or of any
Affiliate or Associate thereof) 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 a continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board of Trustees of the Trust has determined is part of a plan,
arrangement or understanding which has as a primary
-15-
purpose or effect the avoidance of this Section 7(e), shall become null and void
without any further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision of this
Agreement or otherwise. The Trust shall use all reasonable efforts to insure
that the provisions of this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of Rights Certificates or other
Person as a result of its failure 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
appropriate form of election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise shall have been properly
completed and duly executed 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 shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
---------------------------------------------------
Rights Certificates surrendered for the purpose of exercise (other than a
partial exercise), transfer, split up, combination or exchange shall, if
surrendered to the Trust or 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 Rights 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 Rights
Certificate purchased or acquired by the Trust otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Rights Certificates to the
Trust, or shall, at the written
-16-
request of the Trust, destroy such canceled Rights Certificates, and in such
case shall deliver a certificate of destruction thereof to the Trust.
Section 9. Reservation and Availability of Common Shares.
---------------------------------------------
(a) The Trust covenants and agrees that at all times prior to the
occurrence of a Section 11(a)(ii) Event it shall cause to be reserved and kept
available out of its authorized and unissued Common Shares, or any authorized
and issued Common Shares held in its treasury, the number of Common Shares
(and/or other securities) that will be sufficient to permit the exercise in full
of all outstanding Rights and, after the occurrence of a Section 11(a)(ii)
Event, shall, to the extent reasonably practicable, so reserve and keep
available a sufficient number of Common Shares (and/or other securities) which
may be required to permit the exercise in full of the Rights pursuant to this
Agreement.
(b) So long as the Common Shares (or other securities) 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 as the
Rights become exercisable, all shares (or other securities) reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Trust covenants and agrees that it shall take all such action
as may be necessary to ensure that all Common Shares and/or other securities
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable shares or securities.
(d) The Trust further covenants and agrees that it shall pay when due
and payable any and all federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of the Rights Certificates or
of any certificates for Common Shares and/or other securities upon the exercise
of Rights. The Trust shall not, however, be required to pay any transfer tax
which may be payable in respect of any
-17-
transfer or delivery of Rights Certificates to a person other than, or in
respect of the issuance or delivery of the Common Shares and/or other securities
in a name other than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or deliver any
certificates for Common Shares, and/or other securities in a name other than
that of the registered holder upon the exercise of any Rights until such tax
shall have been paid (any such tax being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been established to the
Trust's satisfaction that no such tax is due.
(e) The Trust shall use its best efforts to (i) file, as soon as
practicable following the Shares Acquisition Date (or, if required by law, at
such earlier time following the Distribution Date as so required), a
registration statement under the 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 Act and the rules and regulations
thereunder) until the date of the expiration of the rights provided by Section
11(a)(ii) hereof. The Trust will also take such action as may be appropriate
under the blue sky laws of the various states.
Section 10. Common Shares Record Date. Each person in whose name any
-------------------------
certificate for Common Shares (or other securities) is issued upon the exercise
of Rights shall for all purposes be deemed to have become the holder of record
of the Common Shares (or other securities) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
------- -------
date of such presentation and payment is a date upon which the Common Shares (or
other securities) transfer books of the Trust are closed, such person shall be
deemed to have become the record holder of such shares on, and such certificate
-18-
shall be dated, the next succeeding Business Day on which the Common Shares (or
other securities) transfer books of the Trust are open. Prior to the exercise
of the Rights evidenced thereby, the holder of a Rights Certificate, as such,
shall not be entitled to any rights of a shareholder of the Trust with respect
to shares 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 and Kind of Shares or
----------------------------------------------------------
Number of Rights. The Purchase Price, the number of 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 Common Shares payable in
Common Shares, (B) subdivide the outstanding Common Shares, (C) combine the
outstanding Common Shares into a smaller number of shares or (D) issue any
shares of its capital stock in a reclassification of the Common Shares
(including any such reclassification in connection with a consolidation or
merger in which the Trust is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and in 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 of capital stock
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 of capital stock and other securities
which, if such Right had been exercised immediately prior to such date and
at a time when the Common 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,
-19-
subdivision, combination or reclassification. If an event occurs which
would require an adjustment under both Section 11(a)(i) and Section
11(a)(ii), 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).
(ii) In the event that any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring Person, then proper
provision shall be made so that each holder of a Right (except as provided
below and in Section 7(e) hereof) shall, for a period of 60 days after the
later of the occurrence of any such event or the effective date of an
appropriate registration statement under the Act pursuant to Section 9
hereof, have a right to receive, upon exercise thereof at a price equal to
the then current Purchase Price, in accordance with the terms of this
Agreement, such number of Common Shares of the Trust as shall equal the
result obtained by (x) multiplying the then current Purchase Price by the
then number of Common Shares for which a Right is then exercisable
immediately prior to the first occurrences of a Section 11(a)(ii) Event,
and (y) dividing that product by fifty percent (50%) of the then current
market price per one Common Share (determined pursuant to Section 11(d)
hereof) on the date of such first occurrence (such number of shares being
referred to as the number of "Adjustment Shares"); provided, however, that
-------- -------
if the transaction that would otherwise give rise to the foregoing,
adjustment is also subject to the provisions of Section 13 hereof, then
only the provisions of Section 13 hereof shall apply and no adjustment
shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient treasury
shares or authorized but unissued (and unreserved) Common Shares to permit
the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) and the Rights become so exercisable, notwithstanding any
other provision of this Agreement, to the extent necessary and permitted by
applicable law and any
-20-
agreements in effect on the date hereof to which it is a party, each Right
shall thereafter represent the right to receive, upon exercise thereof at
the then current Purchase Price in accordance with the terms of this
Agreement, a number of shares, or units of shares, of (x) Common Shares (up
to the maximum number of Common Shares which may permissibly be issued
using the allocation procedure specified in the second sentence of Section
11(k)) and/or (y) preferred stock (or other equity securities) of the
Trust, equal in the aggregate to the number of Adjustment Shares where the
Board of Trustees of the Trust shall have deemed such shares or units,
other than the Common Shares, to have at least the same economic value as
the Common Shares (an "equivalent security"); provided, however, if there
-------- -------
are unavailable sufficient shares (or fractions of shares) of Common Shares
and/or equivalent securities, then the Trust shall, to the extent permitted
by applicable law, take all such action as may be necessary to authorize
additional Common Shares and/or equivalent securities for issuance upon
exercise of the Rights, including the calling of a meeting of shareholders,
if necessary; and provided, further, that if the Trust is unable to cause
-------- -------
the authorization of a sufficient number of Common Shares or other
equivalent securities to be available for issuance upon exercise in full of
the Rights, then each Right shall thereafter represent the right to receive
the Adjusted Number of Common Shares upon exercise at the Adjusted Purchase
Price (as such terms are hereinafter defined). As used herein, the term
"Adjusted Number of Common Shares" shall be equal to that number of shares
(or fractions of shares) of Common Shares (and/or shares or units of
equivalent securities) equal to the product of (x) the number of Adjustment
Shares and (y) a fraction, the numerator of which is the number of Common
Shares (and/or shares or units of equivalent securities), as the case may
be, available for issuance upon exercise of the Rights and the denominator
of which is the aggregate number of Adjustment Shares otherwise issuable
upon exercise in
-21-
full of all Rights (assuming there were sufficient Common Shares and/or
shares or units of equivalent securities, as the case may be, available)
(such fraction being referred to as the "Proration Factor"). The "Adjusted
Purchase Price" shall mean the product of the Purchase Price and the
Proration Factor. The Board of Trustees of the Trust may, but shall not be
required to, establish procedures to allocate the right to receive Common
Shares and common stock and/or equivalent securities, as the case may be,
upon exercise of the Rights among holders of Rights.
(b) If the Trust shall fix a record date for the issuance of rights
(other than the Rights), options or warrants to all holders of Common Shares
entitling them (for a period expiring within 45 calendar days after such record
date) to subscribe for or purchase Common Shares (or shares having the same or
more favorable rights, privileges and preferences as the Common Shares ("common
share equivalents")) or securities convertible into Common Shares or common
share equivalents at a price per Common Share or per common share equivalent (or
having a conversion price per share, if a security convertible into Common
Shares) less than the current market price (as defined in Section 11(d)) per
Common Share 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 Common Shares outstanding on such record date, plus the
number of Common Shares which the aggregate offering price of the total number
of Common Shares and/or common share equivalents 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 Common Shares outstanding on such record date, plus
the number of additional Common Shares and/or common share equivalents to be
offered for subscription or purchase (or into which the convertible securities
so to be offered are initially convertible). In case such subscription price
may be paid in a consideration part or all of which shall be in a form
-22-
other than cash, the value of such consideration shall be determined in good
faith by the Board of Trustees of the Trust, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on the
Rights Agent. Common 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) If the Trust shall fix a record date for the making of a
distribution to all holders of Common 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, cash (other than a
regular quarterly cash dividend out of the earnings or retained earnings of the
Trust), assets (other than a dividend payable in Common Shares), or subscription
rights or warrants (excluding those referred to in Section 11(b)), 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 current market price (as defined
in Section 11(d)) per Common Share on such record date, less the fair market
value (as determined in good faith by the Board of Trustees of the Trust, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such subscription rights or
warrants distributable in respect of one Common Share and the denominator of
which shall be the current market price per share of the Common Shares. 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.
-23-
(d) For the purpose of any computation hereunder, the "current market
price" per share 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; 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 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 market price" shall be appropriately adjusted to
reflect the current market price per share equivalent 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 or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, 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 exchange or market 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
-24-
Trustees of the Trust. If on any such date no market maker is making a market in
the Security, the fair value of such shares on such date as determined in good
faith by the Board of Trustees of the Trust shall be used and shall be binding
on the Rights Agent. 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. If the Security is not publicly held or not so listed or traded,
"current market price" per share shall mean the fair value per share determined
in good faith by the Board of Trustees of the Trust, whose determination shall
be described in a statement filed with the Rights Agent and shall be binding on
the Rights Agent.
(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 one percent (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 ten-thousandth of a Common Share or other
share, 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 mandates
such adjustment or (ii) the Final Expiration Date.
(f) If as a result of any provision of Section 11(a) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock of the Trust other than Common 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 shares
contained in Section 11(a) through (c), inclusive, and
-25-
the provisions of Sections 7, 9, 10, 13 and 15 hereof with respect to the Common
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 number of Common Shares
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 Section 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 Common Shares
(calculated to the nearest ten-thousandth) obtained by (i) multiplying (x) the
number of Common Shares covered by a Right immediately prior to this adjustment
by (y) 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 Common Shares purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment in the number of
Rights shall be exercisable for the number of Common Shares for which a Right
was exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest 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
-26-
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day thereafter, but, if the
Rights Certificates have been issued, shall be at least 10 days later than the
date of the public announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Section 11(i), the
Trust shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 15 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 Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Trust, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Trust, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of Common Shares issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of shares which were expressed in the
initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the Common Shares, or
other securities 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 Common Shares,
or other securities at such adjusted
-27-
Purchase Price. If upon any exercise of the Rights, a holder is to receive a
combination Common Shares, and other equivalent securities, a portion of the
consideration paid upon such exercise, equal to at least the then par value of
each security so received, shall be allocated as the payment for each security
of the Trust so received.
(1) 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 until the occurrence of such event
the issuance to the holder of any Right exercised after such record date the
number of Common Shares and other capital stock or securities of the Trust, if
any, issuable upon such exercise over and above the number of Common Shares and
other capital stock or 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 to the contrary in this Section 11 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 (i) consolidation or subdivision of the Common Shares, (ii)
issuance wholly for cash of any Common Shares at less than the current market
price, (iii) issuance wholly for cash of Common Shares or securities which by
their terms are convertible into or exchangeable for Common Shares, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to hereinabove
in this Section 11, hereafter made by the Trust to holders of its Common Shares
shall not be taxable to such shareholders.
(n) The exercise of Rights under Section 11(a)(ii) shall only result
in the loss of rights under Section 11(a)(ii) to the extent so exercised and
shall not otherwise
-28-
affect the rights represented by the Rights under this Rights Agreement,
including the rights represented by Section 13.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
----------------------------------------------------------
Whenever an adjustment is made as provided in Sections 11 and 13 hereof, the
Trust shall (a) promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Common Shares a copy
of such certificate and (c) mail a brief summary thereof to each holder of a
Rights Certificate in accordance with Section 27 hereof. The Rights Agent shall
be fully protected in relying on any such certificate and on any adjustment
therein contained and 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) In the event that, on or following 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 (other than, in the case of either transaction described
in (x) or (y), a merger or consolidation which would result in all of the Voting
Power represented by the securities of the Trust outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into securities of the surviving entity) all of the Voting Power
represented by the securities of the Trust or such surviving entity outstanding
immediately after such merger or consolidation and the holders of such
securities not having changed as a result of such merger or consolidation), or
(z) the Trust shall sell, mortgage or otherwise transfer (or one or more of its
Subsidiaries shall sell, mortgage or otherwise transfer), in one transaction or
a series of related transactions, assets or earning power aggregating more than
fifty percent (50%) of the assets or earning power of the Trust and its
Subsidiaries (taken as a whole) to any other Person, then, and in each such
-29-
case, proper provision shall be made so that (i) following the Distribution
Date, each holder of a Right, subject to Section 7(e) hereof, shall thereafter
have the right to receive, upon the exercise thereof at a price equal to the
then current Purchase Price in accordance with the terms of this Agreement, such
number of freely tradeable Common Shares of the Principal Party (as hereinafter
defined), free and clear of liens, rights of call or first refusal, encumbrances
or other adverse claims, as shall be equal to the result obtained by (x)
multiplying the then current Purchase Price by the number of Common Shares for
which a Right is then exercisable (without taking into account any adjustment
previously made pursuant to Section 11(a)(ii) hereof) and (y) dividing that
product by fifty percent (50%) of the current market price per share 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, 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, it being
specifically intended that the provisions of Section 11 hereof shall apply to
such Principal Party; and (iv) such Principal Party shall take such steps
(including, but not limited to, the 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 clause (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 other party to
-30-
such merger or consolidation (including, if applicable, the Trust, if it is
the surviving entity); and
(ii) in the case of any transaction described in clause (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, (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 or Affiliate of another Person, "Principal
Party" shall refer to such other Person; (2) in case such Person is a
Subsidiary, directly or indirectly, or Affiliate 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.
(c) The Trust shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Trust and each Principal Party and
each other Person who may become a Principal Party as a result of a Section 13
Event shall have a sufficient number of its authorized Common Shares that have
not been issued or reserved for issuance to permit the exercise in full of the
Rights in accordance with this Section 13 and unless prior thereto the Trust and
such Principal Party shall have executed and delivered
-31-
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 Section 13 Event, the Principal Party at
its own expense shall:
(i) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, will use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing and will use its best efforts to cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the blue sky
laws of such jurisdictions as may be necessary or appropriate; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all material respects with the requirements for registration on Form 10
under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. The rights under this Section 13
shall be in addition to the rights to exercise Rights and adjustments under
Section 11(a)(ii) hereof and shall survive any exercise thereunder.
(d) Notwithstanding anything in this Agreement to the contrary, the
provisions of this Section 13 shall not be applicable to a transaction described
in clauses (x) and (y) of Section 13(a) if: (i) such transaction is consummated
with a Person or Persons who acquired Common Shares pursuant to a Permitted
Offer (or a wholly-owned Subsidiary of any such Person or Persons); (ii) the
price per Common Share offered in such transaction is not less than the price
per Common Share paid to all holders of Common Shares whose shares were
purchased pursuant to such Permitted Offer; and (iii)
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the form of consideration being offered to the remaining holders of Common
Shares pursuant to such transaction is the same as the form of consideration
paid pursuant to such Permitted Offer. Upon consummation of any such transaction
contemplated by this subsection (d), all Rights hereunder shall expire.
Section 14. Additional Covenants.
--------------------
(a) After the Distribution Date, the Trust covenants and agrees that
it shall not (i) consolidate with any other Person (other than a Subsidiary of
the Trust in a transaction which does not violate Section 14(b) hereof); (ii)
merge with or into any other Person (other, than a Subsidiary of the Trust in a
transaction which does not violate Section 14(b) hereof); or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one transaction, or
a series of related transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Trust and its Subsidiaries (taken as a
whole), to any other Person or Persons (other than the Trust and/or any of its
Subsidiaries in one or more transactions each of which does not violate Section
14(b) hereof), if (x) at the time of or immediately after such consolidation,
merger, sale or transfer there are any charter or by-law provisions or any
rights, warrants or other instruments outstanding or agreements in effect or
other actions taken, which would diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the shareholders of the
Person who constitutes, or would constitute, the "Principal Party" for purposes
of Section 13 hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and Associates. The Trust shall
not consummate any such consolidation, merger, sale or transfer unless prior
thereto the Trust and such other Person shall have executed and delivered to the
Rights Agent a supplemental agreement evidencing compliance with this
subsection.
(b) The Trust covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 24 or Section 28 hereof, take (or
permit any
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Subsidiary to take) any action the purpose or effect of which is to, or if at
the time such action is taken it is reasonably foreseeable that the effect of
such action is to materially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights.
Section 15. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Trust shall not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in Section 11(n), or to
distribute Rights Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Rights 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 15(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 of the Rights 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 New York
Stock Exchange or, if the Rights are not listed or admitted to trading on the
New York Stock Exchange, 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 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 of the Trust. 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
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determined in good faith by the Board of Trustees of the Trust shall be used and
shall be binding on the Rights Agent.
(b) 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 Rights 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 a Common Share. For purposes of this Section 15(b), the
current market value of a Common Share shall be the closing price of a Common
Share (as determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the transactions or events
specified in Section 11 hereof giving rise to the right to receive common share
equivalents (other than Common Shares) or other securities upon the exercise of
a Right, the Trust shall not be required to issue fractions of shares or units
of such common share equivalents or other securities upon exercise of the Rights
or to distribute certificates which evidence fractional shares of such common
share equivalents or other securities. In lieu of fractional shares or units of
such common share equivalents or other securities, the Trust may pay to the
registered holders of Rights 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 a share or unit of such common share equivalent or other
securities. For purposes of this Section 15(c), the current market value shall
be determined in the manner set forth in Section 11(d) hereof for the Trading
Day immediately prior to the date of such exercise and, if such common share
equivalent is not traded, each such common share equivalent shall have the value
of one Common Share.
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(d) Except as otherwise expressly provided herein, the holder of a
Right by the acceptance of the Rights expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of a Right.
Section 16. Rights of Action. All rights of action in respect of this
----------------
Agreement, excepting the rights of action given to the Rights Agent under
Section 19 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Rights 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 Rights 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 Rights Certificate in the manner provided
in such Rights 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 shall be entitled to specific performance
of the obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
Holders of Rights shall be entitled to recover the reasonable costs and
expenses, including attorneys' fees, incurred by them in any bona fide action to
enforce the provisions of this Agreement, provided such holders prevail in such
action either by judicial determination or settlement.
Section 17. Agreement of Rights 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 Common Shares;
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(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the office of the Rights Agent, designated for such purpose, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate form
fully executed; and
(c) subject to Section 6 and Section 7(f) hereof, the Trust and the
Rights Agent may deem and treat the person in whose name a Rights 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 Rights
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
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 a
beneficial interest in a Right or 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, decree, or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
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 18. Rights Certificate Holder Not Deemed a Shareholder. No
--------------------------------------------------
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Common 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
Rights Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a shareholder of the Trust or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate
-37-
action, or to receive notice of meetings or other actions affecting shareholders
(except as provided in Section 25 hereof), or to receive dividends or other
distributions or to exercise any preemptive or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights Certificate shall
have been exercised in accordance with the provisions hereof.
Section 19. Concerning the Rights Agent. The Trust agrees to pay to the
---------------------------
Rights Agent reasonable compensation for all services rendered by it hereunder
as agreed, and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other reasonable disbursements
incurred in the 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, or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability arising
therefrom, directly or indirectly.
The Rights Agent shall be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights Certificate or
certificate for 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.
Section 20. Merger or Consolidation or Change of Name of Rights Agent.
---------------------------------------------------------
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party,
-38-
or any corporation succeeding to the stock transfer or all or substantially all
of the corporate trust 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 corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 22
hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights 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 Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights 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 Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
----------------------
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Trust and the holders of Rights Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it
(who may be legal counsel for the Trust), and the opinion of such counsel shall
be full and
-39-
complete authorization and protection to the Rights Agent as to any action taken
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) 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 the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Trust and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action taken
or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(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 Rights
Certificates (except as to the fact that it has countersigned the Rights
Certificates) 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 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 Rights 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 Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of Section 11 or 13
hereof or responsible for the manner, method or amount of
-40-
any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such adjustment);
nor shall it be responsible for any determination by the Board of Trustees of
the Trust of the current market value of the Rights or Common Shares pursuant to
the provisions of Section 15 hereof; nor shall it by any act hereunder be deemed
to make any representation or warranty as to the authorization or reservation of
any Common Shares or other securities to be issued pursuant to this Agreement or
any Rights Certificate or as to whether any Common Shares or other securities
will, when so 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 and
certificates delivered pursuant to any provision hereof from the Chairman of the
Board, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Trust, and is
authorized to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any shareholder, 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 become pecuniarily interested in any transaction in
which the Trust may be interested, or contract with or lend money to the Trust
or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude
-41-
the Rights Agent from acting in any other capacity for the Trust or for any
other legal entity.
(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 or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Trust or to the holders of the Rights
resulting from any such act, omission, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment thereof.
(j) 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
hereunder 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.
(k) If, with respect to any Rights 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 of transfer without first consulting with the Trust.
Section 22. 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 by registered or certified mail, and to holders of the
Rights Certificates by first-class mail. The Trust may remove the Rights Agent
or any successor Rights Agent upon thirty (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 by registered or certified mail,
-42-
and to the holders of the Rights 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
Rights Certificate (who shall, with such notice, submit his Rights Certificate
for inspection by the Trust), then the registered holder of any Rights
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) a corporation organized and doing
business under the laws of the United States or any state of the United States
or the District of Columbia, in good standing, which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or
examination by federal, state or District of Columbia authority and which has at
the time of its appointment as Rights Agent a combined capital and surplus of at
least $10,000,000 or (b) an affiliate of a corporation described in clause (a)
of this sentence. 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, and mail a notice thereof in writing to the registered
holders of the Rights Certificates. Failure to give any notice provided for in
this Section 22, 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.
-43-
Section 23. Issuance of New Rights Certificates. Notwithstanding any of
-----------------------------------
the provisions of this Agreement or of the Rights to the contrary, the Trust
may, at its option, issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Trustees of the Trust to reflect any
adjustment or change in the Purchase Price per share and the number or kind or
class of shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of Common Shares following the
Distribution Date and prior to the Expiration Date, the Trust (a) shall with
respect to Common Shares so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities, notes or debentures issued by the Trust,
and (b) may, in any other case, if deemed necessary or appropriate by the Board
of Trustees of the Trust, issue Rights Certificates representing the appropriate
number of Rights in connection with such issuance or sale; provided, however,
-------- -------
that (i) the Trust shall not be obligated to issue any such Right Certificates
if, and to the extent that, the Trust shall be advised by counsel that such
issuance would create a significant risk of material adverse tax consequences to
the Trust or the Person to whom such Rights Certificate would be issued, and
(ii) no Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 24. Redemption and Termination.
--------------------------
(a) (i) The Board of Trustees of the Trust may, at its option, at
any time prior to the earlier of (x) the Shares Acquisition Date or (y) 5:00
P.M., District of Columbia time, on the Final Expiration Date, redeem all but
not less than all of the then outstanding Rights at a redemption price of $0.01
per Right, as such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the "Redemption Price").
The Trust may, at its option, pay the Redemption Price either in
-44-
Common Shares (based on the "current market price" per share, as defined in
Section 11(d)(i) hereof, of the Common Shares at the time of redemption) or
cash; provided that if the Trust elects to pay the Redemption Price in Common
Shares, the Trust shall not be required to issue any fractional Common Shares
and may pay cash in lieu thereof.
(ii) In addition, the Board of Trustees of the Trust may redeem all
but not less than all of the then outstanding Rights at the Redemption Price
following the occurrence of a Shares Acquisition Date but prior to any event
described in Section 13(a) either (x) in connection with any event specified in
Section 13(a) in which all holders of Common Shares are treated alike and not
involving (other than as a holder of Common Shares being treated like all other
such holders) an Acquiring Person or an Affiliate or Associate of an Acquiring
Person or any other Person in which such Acquiring Person, Affiliate or such
Associate has any interest, or any other Person acting directly or indirectly on
behalf of or in association with any such Acquiring Person, Affiliate or
Associate, or (y) following the occurrence of an event set forth in, and the
expiration of any period during which the holder of Rights may exercise the
rights under, Section 11(a)(ii) if and for as long as the Acquiring Person is
not thereafter the Beneficial Owner of securities representing fifteen percent
(15%) or more of the outstanding Common Shares, and at the time of redemption
there are no other persons who are Acquiring Persons, provided, however, that
-------- -------
for purposes of this Section 24, the effect of Section 6.12 of the Third Amended
and Restated Declaration of Trust of the Trust, or an successor provision, and
actions taken by the Board of Trustees of the Trust pursuant thereto, shall be
disregarded.
(b) In the case of a redemption permitted under Section 24(a)(i),
immediately upon the action of the Board of Trustees of the Trust ordering the
redemption of the Rights, evidence of which shall have been filed with the
Rights Agent 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
-45-
Redemption Price. In the case of a redemption permitted only under Section
24(a)(ii), evidence of which shall have been filed with the Rights Agent, the
right to exercise the Rights will terminate and represent only the right to
receive the Redemption Price only after ten Business Days following the giving
of notice of such redemption to the holders of such Rights if no event set forth
in Section 11(a)(ii) shall have occurred, and, if such event shall have
occurred, upon the later of ten Business Days following the giving of such
notice or the expiration of any period during which the rights under Section
11(a)(ii) may be exercised. The Trust shall promptly give public notice of any
such redemption; provided, however, that the failure to give, or any defect in,
-------- -------
any such notice shall not affect the validity of such redemption. Within ten
days after the action of the Board of Trustees of the Trust ordering any such
redemption of the Rights, the Trust shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights by mailing such
notice to the Rights Agent and to all such holders 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. 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 24 and other than in connection
with the purchase of Common Shares prior to the Distribution Date.
(c) In the case of a redemption permitted under Section 24(a)(i) or
(ii) hereof, 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 and (ii) mailing payment of the Redemption Price to the
registered holders of the Rights at their last addresses as they appear on the
registry books of the Rights Agent or, prior to
-46-
the Distribution Date, on the registry books of the Transfer Agent of the Common
Shares, and upon such action, all outstanding Rights Certificates shall be null
and void without any further action by the Trust.
Section 25. Exchange.
--------
(a) The Board of Trustees of the Trust may, at its option, at any time
after any Person becomes an Acquiring Person, 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) and 11(a)(ii) hereof) for
Common Shares of the Trust at an exchange ratio of one Common Share per Right
(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 any such
Subsidiary, any entity holding Common Shares for or pursuant to the terms of any
such plan or any trustee, administrator or fiduciary of such a 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 of the Trust
ordering the exchange of any Rights pursuant to Section 25(a) hereof 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; 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
-47-
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 void pursuant to the provisions of Sections 7(e) and 11(a)(ii) hereof)
held by each holder of Rights.
(c) In any exchange pursuant to this Section 25, the Trust, at its
option, may substitute common share equivalents (as such term is defined in
Section 11(b) hereof) for some or all of the Common Shares exchangeable for
Rights, at the initial rate of one common share equivalent for each Common
Share.
(d) The Board of Trustees shall not authorize any exchange transaction
referred to in Section 25(a) hereof unless at the time such exchange is
authorized there shall be sufficient Common Shares issued but not outstanding,
or authorized but unissued, to permit the exchange of Rights as contemplated in
accordance with this Section 25.
Section 26. Notice of Certain Events. In case the Trust shall propose
------------------------
(a) to pay any dividend payable in stock of any class to the holders of Common
Shares or to make any other distribution to the holders of Common Shares (other
than a regular quarterly cash dividend out of earnings or retained earnings of
the Trust) or (b) to offer to the holders of Common Shares rights or warrants to
subscribe for or to purchase any additional Common Shares or shares of stock of
any class or any other securities, rights or options, or (c) to effect any
reclassification of its Common Shares (other than a reclassification involving
only the subdivision of outstanding Common Shares), or (d) 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 more than fifty percent (50%) of the
assets or earning power of the Trust and its subsidiaries (taken as a whole) to,
any other Person, or (e) to effect the liquidation, dissolution or winding up of
the Trust, then, in each such case, the Trust shall give to each holder of a
Rights Certificate, in accordance with Section 27 hereof, a notice
-48-
of such proposed action, which shall specify the record date for the purposes of
such stock dividend, 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, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(a) or (b) above at least twenty (20) days prior to the record date for
determining holders of the Common Shares for purposes of such action, and in the
case of any such other action, at least twenty (20) 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 whichever shall be the earlier.
In case any of the events set forth in Section 11(a)(ii) of this
Agreement shall occur, then, in any such case, the Trust shall as soon as
practicable thereafter give to each holder of a Rights Certificate, in
accordance with Section 27 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) hereof.
Section 27. Notices. Notices or demands authorized by this Agreement to
-------
be given or made by the Rights Agent or by the holder of any Rights 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:
Federal Realty Investment Trust
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Subject to the provisions of Section 22, any notice or demand authorized by this
Agreement to be given or made by the Trust or by the holder of any Rights
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:
-49-
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Executive Vice President
Notices or demands authorized by this Agreement to be given or made by the Trust
or the Rights Agent to the holder of any Rights 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.
Section 28. Supplements and Amendments. The Trust and the Rights Agent
--------------------------
may from time to time supplement or amend this Agreement without approval of any
holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) prior to the Distribution
Date, to change or supplement the provisions hereunder which the Trust may deem
necessary or desirable or (iv) following the Distribution Date, to change or
supplement the provisions hereunder in any manner which the Trust may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Rights Certificates. Upon the delivery of a certificate from an
appropriate officer of the Trust which states that the proposed supplement or
amendment is in compliance with the terms of this Section 28, the Rights Agent
shall execute such supplement or amendment unless the Rights Agent shall have
determined in good faith that such supplement or amendment would adversely
affect its interests under this Agreement. Prior to this Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Shares.
Section 29. Determination and Actions by the Board of Trustees, etc.
--------------------------------------------------------
For all purposes of this Agreement, any calculation of the number of Common
Shares outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding Common Shares or any other
securities of which any Person is the Beneficial Owner, shall be made in
accordance with the last
-50-
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement. The Board of Trustees
of the Trust 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 (i) interpret the provisions of this Agreement, and (ii) 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 the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, 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 Rights Certificates and all other parties, and (y) not
subject the Board of Trustees to any liability to the holders of the Rights
Certificates.
Section 30. 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 31. Benefits of this Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any person or corporation other than the Trust, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Trust, the Rights Agent and the registered holders
of the Rights Certificates (and, prior to the Distribution Date, the Common
Shares).
Section 32. 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
-51-
of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 33. Governing Law. This Agreement, each Right and each Rights
-------------
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the District of Columbia and for all purposes shall be governed by and
construed in accordance with the laws of such District applicable to contracts
to be made and to be performed entirely within such District.
Section 34. 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.
Section 35. 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 36. Non-Recourse. This Agreement and all documents, agreements,
------------
understandings and arrangements relating hereto have been entered into or
executed on behalf of the Trust by the undersigned in his capacity as a trustee
or officer of the Trust, which has been formed as an unincorporated business
trust under the laws of the District of Columbia pursuant to a Third Amended and
Restated Declaration of Trust of the Trust dated as of May 24, 1984, and not
individually, and none of the trustees, officers, employees, agents or
shareholders of the Trust shall be personally bound or have any personal
liability hereunder. The Rights Agent shall look solely to the assets of the
Trust for satisfaction of any liability of the Trust with respect to this
Agreement. The Rights Agent will not seek recourse or commence any action
against any of the shareholders of Trust or any of their personal assets, and
will not commence any action for money judgments against any of the trustees,
officers, employees or agents of the Trust or seek
-52-
recourse against any of their personal assets, for the performance or payment of
any obligation of the Trust hereunder or thereunder.
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
Attest: FEDERAL REALTY INVESTMENT TRUST
[SEAL]
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- ------------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: Vice President - Title: Vice President - General Counsel
Controller
Attest: AMERICAN STOCK TRANSFER & TRUST
COMPANY
as Rights Agent
[SEAL]
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- ------------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
-54-
A-1
Exhibit A
---------
[Form of Rights Certificate]
Certificate No. R- __Rights
NOT EXERCISABLE AFTER APRIL 24, 2009 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE TRUST, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO EXCHANGE, AT THE OPTION
OF THE TRUST, AT ONE COMMON SHARE PER RIGHT ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE
OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE, ASSOCIATE OR TRANSFEREE OF AN ACQUIRING
PERSON. ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY ARE NULL AND VOID.*]
Rights Certificate
Federal Realty Investment 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 Amended and
Restated Rights Agreement dated as of March 11, 1999 (the "Rights Agreement")
between Federal Realty Investment Trust, an unincorporated business trust
governed by the laws of the District of Columbia (the "Trust"), and American
Stock Transfer & Trust Company (the "Rights Agent"), to purchase from the Trust
at any time after the Distribution Date (as such term
------------------
* The portion of the legend in brackets shall be inserted only if applicable.
A-2
is defined in the Rights Agreement) and prior to 5:00 P.M. (District of Columbia
time) on April 24, 2009, at the office of the Rights Agent designated for such
purposes, a fully paid, non-assessable Common Share, no par value (the "Common
Shares") of the Trust, at a purchase price of $65.00 per share (the "Purchase
Price"), upon presentation and surrender of this Rights Certificate with the
appropriate Form of Election to Purchase and related Certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and the number of
shares which may be purchased upon exercise thereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
March 11, 1999, based on the Common Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of
Common Shares or other securities which may be purchased upon the exercise of
the Rights evidenced by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events.
This Rights 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 Rights Certificates. Copies of
the Rights Agreement are on file at the principal office of the Trust, and the
Trust will mail to the holder a copy of the Rights Agreement within five days of
a written request therefor.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office of the Rights Agent, may be exercised for
another Rights Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Common Shares as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised (other than pursuant to Section
A-3
11(a)(ii) of the Rights Agreement) in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or Rights Certificates
for the number of whole Rights not exercised. If this Rights Certificate shall
be exercised in whole or in part pursuant to Section 11(a)(ii) of the Rights
Agreement, the holder shall be entitled to receive this Rights Certificate duly
marked to indicate that such exercise has occurred as set forth in the Rights
Agreement.
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 $0.01 per Right. Subject to the provisions of the Rights Agreement,
the Trust, at its option, may elect to mail payment of the redemption price to
the registered holder of the Right at the time of redemption, in which event
this certificate may become void without any further action by the Trust.
No fractional Common Shares will be issued upon the exercise of any Right
or Rights evidenced hereby but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Common 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, subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
A-4
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
A-5
WITNESS the facsimile signature of the proper officers of the Trust. Dated
as of ___________.
ATTEST: FEDERAL REALTY INVESTMENT TRUST
---------------------------- ----------------------------------
Name: Name:
Title: Title:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY,
as Rights Agent
----------------------------
Authorized Signature
A-6
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED __________________________________________________ hereby
sells, assigns and transfers unto ______________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________________________
Attorney, to transfer the within Rights Certificate on the books of the within-
named Trust, with full power of substitution.
Dated:_____________, ____
--------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-7
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate, Associate or transferee of any such
Acquiring Person (as such terms are defined in 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 Rights Certificate from
any Person who is or was an Acquiring Person, or an Affiliate, Associate or
transferee of any such Acquiring Person (as such terms are defined in the Rights
Agreement).
Dated: __________, 19__
----------------------------
Signature
NOTICE
------
The signature to the foregoing Assignment must correspond to the name as
written upon the face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to Purchase, as the case may be, is not completed, the
Trust and the Rights Agent will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person, or any
Affiliate, Associate or transferee of such Acquiring Person (as such terms are
defined in the Rights Agreement), and such Assignment or Election to Purchase
will not be honored.
A-8
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To FEDERAL REALTY INVESTMENT TRUST:
The undersigned hereby irrevocably elects to exercise ___________ Rights
represented by this Rights Certificate to purchase the Common Shares (or such
other securities of the Trust) 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)
The Rights Certificate indicating the balance, if any, of such Rights which
may still be exercised pursuant to each of Section 11(a)(ii) and Section 13 of
the Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificate be registered in the name of and delivered
to:
--------------------------------------------------------------------------------
(Please insert social security or other identifying number) (complete only if
Rights Certificate is to be registered in a name other than the undersigned)
--------------------------------------------------------------------------------
(Please print name and address)
Dated: ____________, ____
-----------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-9
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
Affiliate, Associate or transferee of any such Acquiring Person (as such terms
are defined in 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 Rights Certificate from
any Person who is or was an Acquiring Person, or an Affiliate, Associate or
transferee of any such Acquiring Person (as such terms are defined in the Rights
Agreement).
Dated:__________, ____
---------------------
Signature
NOTICE
------
The signature to the foregoing Election to Purchase must correspond to the
name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to Purchase, as the case may be, is not completed, the
Trust and the Rights Agent will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person, or any
Affiliate, Associate or transferee of such Acquiring Person (as such terms are
defined in the Rights Agreement), and such Assignment or Election to Purchase
will not be honored.
A-10
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate other than pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To FEDERAL REALTY INVESTMENT TRUST:
The undersigned hereby irrevocably elects to exercise ___________ Rights
represented by this Rights Certificate to purchase the Common Shares (or such
other securities of the Trust or any other Person) 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)
The Rights Certificate indicating the balance, if any, of such Rights which
may still be exercised pursuant to each of Section 11(a)(ii) and Section 13 of
the Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificate be registered in the name of and delivered
to:
--------------------------------------------------------------------------------
(Please insert social security or other identifying number) (complete only if
Rights Certificate is to be registered in a name other than the undersigned)
--------------------------------------------------------------------------------
(Please print name and address)
Dated:_____________, ____
--------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-11
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person, or an Affiliate, Associate or transferee 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 Rights Certificate from
any Person who is or was an Acquiring Person, or an Affiliate, Associate or
transferee of any such Acquiring Person (as such terms are defined in the Rights
Agreement.
Dated:___________, ____
--------------------
Signature
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to Purchase, as the case may be, is not completed, the
Trust and the Rights Agent will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person, or any
Affiliate, Associate or transferee of such Acquiring Person (as such terms are
defined in the Rights Agreement), and such Assignment or Election to Purchase
will not be honored.
B-1
Exhibit B
---------
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
OVERVIEW
On April 13, 1989, the Board of Trustees of the Federal Realty
Investment Trust (the "Trust") declared a dividend distribution of one Right (a
"Right") for each outstanding common share of beneficial interest, no par value
(the "Common Shares"), of the Trust to shareholders of record at the close of
business on April 24, 1989 (the "Record Date"), with such Rights to expire on
April 24, 1999. On March 11, 1999, the expiration date of the Rights was
extended and certain other amendments to the terms of the Rights were adopted.
Except as set forth below, each Right (as amended), when exercisable, entitles
the registered holder to purchase from the Trust one Common Share at a price of
$65.00 (the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in an Amended and Restated Rights Agreement (the
"Rights Agreement") between the Trust and American Stock Transfer & Trust
Company as Rights Agent.
DISTRIBUTION DATE, TRANSFER OF RIGHTS
Initially, the Rights will be attached to all Common Shares
certificates representing shares then outstanding, and no separate Right
certificates will be distributed. The Rights will be evidenced, with respect to
any of the Common Shares certificates outstanding as of the Record Date, by such
Common Shares certificate together with the Summary of Rights which is attached
as Exhibit B to the Rights Agreement, until the earlier to occur of (i) a public
announcement that, without the prior consent of the Board of Trustees of the
Trust, a person or group of affiliated or associated persons has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of the Common
Shares of the Trust (an "Acquiring Person")/1/ or (ii) ten days following the
commencement of (or a public announcement of an intention to make) a tender
offer or exchange offer which would result in any person or group and related
persons becoming an Acquiring Person, without the prior consent of the Trust
(the earlier of such dates being called the "Distribution Date").
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with Common Shares certificates. From
as soon as practicable
---------------------
/1/ For purposes of calculating such ownership, the effect of Section 6.12 of
the Third Amended and Restated Declaration of Trust of the Trust (relating to
limitations on ownership in excess of 9.8% of the Common Stock of the Trust), or
any successor provision, and actions taken by the Board of Trustees of the Trust
pursuant thereto, shall be disregarded.
B-2
after the Record Date and until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date (with or without this Summary of
Rights attached) will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Rights Certificates") will be mailed to holders of record of the Common Shares
as of the close of business on the Distribution Date, and the separate Rights
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on the earliest of (i) April 24, 2009, (ii) consummation of a
merger transaction with a person or group who acquired Common Shares pursuant to
a Permitted Offer (as defined below) and is offering in the merger the same
price per share and form of consideration paid in the Permitted Offer, or (iii)
redemption by the Trust as described below.
EXERCISE OF RIGHT FOR SHARES OF THE TRUST
In the event that any person becomes an Acquiring Person (unless
pursuant to a tender offer or exchange offer for all outstanding Common Shares
at a price and on terms determined by at least a majority of the members of the
Board of Trustees of the Trust who are officers of the Trust to be both adequate
and otherwise in the best interests of the Trust and its shareholders (a
"Permitted Offer")), proper provision shall be made so that each holder of a
Right will for a 60-day period thereafter have the right to receive upon
exercise and payment of the Purchase Price (initially $65.00, but subject to
adjustment) that number of shares (or fractional shares) of Common Shares having
a then current market value of two times the Purchase Price (e.g., $130.00 based
----
on the initial Purchase Price of $65.00), subject to the availability of a
sufficient number of authorized but unissued Common Shares (such right being
called the "Flip-In Right"). For example, at the initial Purchase Price of
$65.00, if at the time of exercise the Trust's Common Shares had an average
market price of $21 2/3 per share, the holder of each Right, other than the
Acquiring Person, would be entitled to buy six (6) Common Shares for $65.00.
The Trust shall be entitled (but not required) to deliver, upon exercise of the
Right, in lieu of Common Shares, shares of equivalent securities.
EXERCISE OF RIGHTS FOR SHARES OF ACQUIRING COMPANY
In the event that, after the first date of public announcement by the
Trust or an Acquiring Person that an Acquiring Person has become such, the Trust
is involved in a merger or other business combination transaction in which the
Common Shares are exchanged or changed, or 50% or more of the Trust's assets or
earning power are sold (in one transaction or a series of transactions), proper
provision shall be made so that each
B-3
holder of a Right (other than such Acquiring Person) shall thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of Common Shares of the acquiring company, (or, in the
event there is more than one acquiring company, the acquiring company receiving
the greatest portion of the assets or earning power transferred) which at the
time of such transaction would have a market value of two times the exercise
price of the Right (such right being called the "Flip-Over Right"). For example,
at the initial Purchase Price of $65.00, if at the time of exercise the
acquiring company's common stock had an average market price of $13.00, the
holder of each right, other than the Acquiring Person, would be entitled to buy
ten (10) shares of the acquiring company's common stock for $65.00.
The holder of a Right will continue to have the Flip-Over Right
whether or not such holder exercises the Flip-In Right. Upon the occurrence of
any of the events giving rise to the exercisability of the Flip-In Right or the
Flip-Over Right, any Rights that are or were at any time owned by an Acquiring
Person engaging in any of such transactions or receiving the benefits thereof on
or after the time the Acquiring Person becomes such shall become void insofar as
they relate to the Flip-In Right or the Flip-Over Right.
ADJUSTMENT TO PURCHASE PRICE
The Purchase Price payable, and the number of Common Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of the Common
Shares, (ii) upon the grant to holders of the Common Shares of certain rights or
warrants to subscribe for Common Shares, certain convertible securities or
securities having the same or more favorable rights, privileges and preferences
as the Common Shares at less than the current market price of the Common Shares
or (iii) upon the distribution to holders of the Common Shares of evidences of
indebtedness or assets (excluding regular quarterly cash dividends out of
earnings or retained earnings) or of subscription rights or warrants (other than
those referred to above).
The Purchase Price is also subject to adjustment in the event of a
stock split of the outstanding Common Shares, or a stock dividend on the
outstanding Common Shares payable in Common Shares, or subdivisions,
consolidations or combinations of the outstanding Common Shares occurring, in
any such case, prior to the Distribution Date.
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractions of shares will be issued and, in lieu thereof,
an adjustment in case will be
B-4
made based on the market price of the Common Shares on the last trading date
prior to the date of exercise.
REDEMPTION OF RIGHTS
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Trust may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right (the "Redemption
Price"), which redemption shall be effective upon the authorization of the Board
of Trustees. Additionally, the Trust may, after a person becomes an Acquiring
Person, redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price provided that such redemption is incidental to a merger or
other business combination transaction or series of transactions involving the
Trust but not involving an Acquiring Person or any person who was an Acquiring
Person or following an event giving rise to, and the expiration of the exercise
period for the Flip-In Right if there is no longer an Acquiring Person. The
redemption of Rights described in the preceding sentence shall be effective only
as of such time when the Flip-In Right is not exercisable, and in any event,
only after 10 business days prior notice. Upon the effective date of the
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Trust, including, without limitation, the right
to vote or to receive dividends.
The terms of the Rights may be amended by the Board of Trustees of the
Trust and the Rights Agent, (i) prior to the Distribution Date in any manner,
and (ii) on or after the Distribution Date to cure any ambiguity, to shorten or
lengthen any time period under the Rights Agreement, to correct or supplement
any provision of the Rights Agreement which may be defective or inconsistent
with any other provisions, or in any manner not adversely affecting the
interests of the holders of the Rights.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Form 8-A/A amending the Trust's
Registration Statement on Form 8-A, previously filed on April 14, 1989. A copy
of the Rights Agreement is available free of charge from the Trust. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
