EXHIBIT 4.4
RECKSON OPERATING PARTNERSHIP, L.P.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
RIGHTS AGREEMENT
Dated as of October 13, 2000
TABLE OF CONTENTS
Page
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Section 1. Certain Definitions..................................................................................1
Section 2. Appointment of Rights Agent..........................................................................5
Section 3. Issuance of Right Certificates.......................................................................5
Section 4. Form of Right Certificate............................................................................6
Section 5. Countersignature and Registration....................................................................7
Section 6. Transfer, Split-Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificate...............................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights........................................9
Section 8. Cancellation and Destruction of Right Certificates..................................................11
Section 9. Reservation and Availability of Preferred Units.....................................................11
Section 10. Preferred Units Record Date.........................................................................12
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights.........................13
Section 12. Certificate of Adjusted Purchase Price or Number of Securities......................................20
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power................................20
Section 14. Fractional Rights and Fractional Units..............................................................25
Section 15. Rights of Action....................................................................................26
Section 16. Agreement of Right Holders..........................................................................27
Section 17. Right Certificate Holder Not Deemed a Unitholder....................................................27
Section 18. Concerning the Rights Agent.........................................................................28
Section 19. Merger or Consolidation or Change of Name of Rights Agent...........................................29
Section 20. Duties of Rights Agent..............................................................................29
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Section 21. Change of Rights Agent..............................................................................32
Section 22. Issuance of New Right Certificates..................................................................33
Section 23. Redemption and Termination..........................................................................33
Section 24. Exchange............................................................................................34
Section 25. Notice of Certain Events............................................................................35
Section 26. Notices.............................................................................................36
Section 27. Supplements and Amendments..........................................................................37
Section 28. Determination and Actions by the General Partner....................................................38
Section 29. Successors..........................................................................................38
Section 30. Benefits of this Agreement..........................................................................38
Section 31. Severability........................................................................................39
Section 32. Governing Law.......................................................................................39
Section 33. Counterparts........................................................................................39
Section 34. Descriptive Headings................................................................................39
Exhibit A - Form of Supplement to the Amended and Restated Agreement of
Limited Partnership
Exhibit B - Form of Right Certificate
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Defined Term Cross Reference Sheet
Term Location
--------------------------------- ------------------------
Acquiring Person Section 1(a)
Act Section 1(b)
Adjustment Units Section 11(a)(ii)
Adjusted Number of Units Section 11(a)(iii)
Adjusted Purchase Price Section 11(a)(iii)
Affiliate Section 1(c)
Agreement Preface
Associate Section 1(c)
Beneficial Owner Section 1(d)
Beneficially Own Section 1(d)
Business Day Section 1(e)
Close of Business Section 1(f)
Common Shares Section 1(g)
Corporation Section 1(h)
current per unit market price Section 11(d)(i)
Distribution Date Section 3(a)
Documents Section 18
equivalent preferred units Section 11(b)
Excess Shares Section 1(j)
Exchange Act Section 1(c)
Exchange Ratio Section 24(a)
Final Expiration Date Section 7(a)
First Issuance Exhibit A, Page A5
General Partner Section 1(l)
Interested Stockholder Section 1(m)
Liquidation Exhibit A, Page A6
Nasdaq Section 11(d)(i)
Ownership Section 1(n)
Partnership Preface
Partnership Agreement Section 1(o)
Partnership Principal Party Section 13(c)
Partnership Rights Agreement Exhibit A Recitals
Partnership Section 13 Event Section 13(a)(2)
Partnership Unit Section 1(p)
Permitted Offer Section 1(q)
Person Section 1(r)
Preferred Units Section 1(s)
Principal Party Section 13(b)
Proration Factor Section 11(a)(iii)
Purchase Price Section 4(a)
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Quarterly Distribution Payment Date Exhibit A, Page A5
Record Date Preface
Redemption Date Section 7(a)
Redemption Price Section 23(a)(i)
Right Preface
Right Certificate Section 3(a)
Rights Agent Preface
Section 11(a)(ii) Event Section 11(a)(ii)
Section 13 Event Section 13(a)
Security Section 11(d)(i)
Series F Preferred Units Exhibit A, Page A2
Shares Acquisition Date Section 1(w)
Subsidiary Section 1(x)
then outstanding Section 1(d)(iii)
Trading Day Section 11(d)(i)
Triggering Event Section 11(a)(ii), 13(a)
unit equivalent Section 11(a)(iii)
voting securities Section 13(a)
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RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of October 13, 2000 (this "Agreement"),
between Reckson Operating Partnership, L.P., a limited partnership organized
under the laws of Delaware (the "Partnership"), and American Stock Transfer &
Trust Company (the "Rights Agent").
The General Partner (as hereinafter defined) of the Partnership has
authorized and declared a distribution of one preferred unit purchase right (a
"Right") for each Partnership Unit (as hereinafter defined) of the Partnership
outstanding at the Close of Business on October 27, 2000 (the "Record Date"),
each Right representing the right to purchase one one-thousandth of a Preferred
Unit (as hereinafter defined), upon the terms and subject to the conditions
herein set forth, and has further authorized and directed the issuance of one
Right with respect to each Partnership Unit that shall become outstanding
between the Record Date and the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with respect to
Partnership Units that shall become outstanding after the Distribution Date and
prior to the earlier of the Redemption Date and the Final Expiration Date in
accordance with the provisions of Section 22 of this Agreement.
Accordingly, in consideration of the promises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of the then outstanding Common Shares (other than as a result of
a Permitted Offer (as hereinafter defined)) or was such a Beneficial Owner at
any time after the date hereof, whether or not such person continues to be the
Beneficial Owner of 15% or more of the then outstanding Common Shares.
Notwithstanding the foregoing, (A) the term "Acquiring Person" shall not include
(i) the Corporation, (ii) any Subsidiary of the Corporation, (iii) any employee
benefit plan of the Corporation or of any Subsidiary of the Corporation, (iv)
any Person or entity organized, appointed or established by the Corporation for
or pursuant to the terms of any such plan, or (v) any Person, who or which
together with all Affiliates and Associates of such Person becomes the
Beneficial Owner of 15% or more of the then outstanding Common Shares as a
result of the acquisition of Common Shares directly from the Corporation and (B)
no Person shall be deemed to be an "Acquiring Person" either (X) as a result of
the acquisition of Common Shares by the Corporation 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; except that if (i) a Person would become an
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Acquiring Person (but for the operation of this subclause X) as a result of the
acquisition of Common Shares by the Corporation, and (ii) after such share
acquisition by the Corporation, such Person, or an Affiliate or Associate of
such Person, becomes the Beneficial Owner of any additional Common Shares, then
such Person shall be deemed an Acquiring Person, or (Y) if such Person became an
Acquiring Person inadvertently, (i) promptly after such Person discovers that
such Person would otherwise have become an Acquiring Person (but for the
operation of this subclause Y), such Person notifies the Board of Directors of
the Corporation that such Person did so inadvertently and (ii) within 2 days
after such notification, 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 as 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 Securities Exchange Act of 1934, as amended and in effect on the date of
this Agreement (the "Exchange Act").
(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 to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to Beneficially Own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to Beneficially Own, any security if the
agreement, arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2) is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(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
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Person's Affiliates or Associates) has any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of securities)
relating to the acquisition, holding, voting (except to the extent contemplated
by the proviso to Section 1(d)(ii)(B)) or disposing of any securities of the
Corporation.
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 Corporation, 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.
(e) "Business Day" shall mean any day other than a Saturday, Sunday or
U.S. federal holiday.
(f) "Close of Business" on any given date shall mean 5:00 P.M., New
York City, New York time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 P.M., New York City, New York time, on the
next succeeding Business Day.
(g) "Common Shares" when used with reference to the Corporation shall
mean the shares of class A common stock, par value $.01 per share, of the
Corporation or, in the event of a subdivision, combination or consolidation with
respect to such shares of common stock, the shares of common stock resulting
from such subdivision, combination or consolidation. "Common Shares" when used
with reference to any Person other than the Corporation shall mean the capital
stock (or equity interest) with the greatest voting power of such other Person
or, if such other Person is a Subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned Person.
(h) "Corporation" means Reckson Associates Realty Corp., a Maryland
corporation.
(i) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(j) "Excess Shares" means shares of "Excess Stock" as defined in the
Corporation's Articles of Incorporation or "Class B Excess Common" as defined in
the articles supplementary establishing the rights and preferences of the
Corporation's class B common stock, par value $.01 per share.
(k) "Final Expiration Date" shall have the meaning set forth in Section
7 hereof.
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(l) "General Partner" means Reckson Associates Realty Corp., a Maryland
corporation, in its capacity as the general partner of the Partnership, or any
person who becomes an additional or successor general partner of the
Partnership.
(m) "Interested Stockholder" shall mean any Acquiring Person or any
Affiliate or Associate of an Acquiring Person or any other Person in which any
such Acquiring Person, Affiliate or Associate has an interest, or any other
Person acting directly or indirectly on behalf of or in concert with any such
Acquiring Person, Affiliate or Associate.
(n) "Ownership" means ownership of rights or capital stock of the
Corporation by a Person who is or would be treated as an owner of such rights or
capital stock directly or constructively through the application of (a) section
544 of the Internal Revenue Code as modified by section 856(h) of the Internal
Revenue Code or (b) section 318 of the Internal Revenue Code as modified by
section 856(d)(5) of the Internal Revenue Code. "Owner", "Own" and "Owned" shall
have correlative meanings.
(o) "Partnership Agreement" means the Agreement of Limited Partnership
of Reckson Operating Partnership, L.P., dated June 2, 1995, as amended and
restated and all supplements thereto.
(p) "Partnership Unit" means a Class A Common Partnership Unit of the
Partnership.
(q) "Permitted Offer" shall mean a tender or exchange offer which is
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 Directors of the Corporation who are not
officers of the Corporation and who are not Acquiring Persons or Persons who
would become Acquiring Persons as a result of the offer in question or
Affiliates, Associates, nominees or representatives of any such Person, to be
adequate (taking into account all factors that such Directors deem relevant
including, without limitation, prices that could reasonably be achieved if the
Corporation or its assets were sold on an orderly basis designed to realize
maximum value) and otherwise in the best interests of the Corporation and its
stockholders (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
directors may deem relevant.
(r) "Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust, association, joint venture or other entity,
and shall include any successor (by merger or otherwise) of such entity.
(s) "Preferred Units" shall mean Series F Preferred Units of the
Partnership.
(t) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
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(u) "Section 11(a)(ii) Event" shall mean any event described in Section
11(a)(ii) hereof.
(v) "Section 13 Event" shall mean any event described in clause (x),
(y) or (z) of Section 13(a) hereof.
(w) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to the Exchange Act) by the Corporation or
an Acquiring Person that an Acquiring Person has become such; provided, that, if
such Person is determined not to have become an Acquiring Person pursuant to
Section 1(a)(B)(Y) hereof, then no Shares Acquisition Date shall be deemed to
have occurred.
(x) "Subsidiary" of any Person shall mean any corporation or other
Person of which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person.
(y) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
Section 2. Appointment of Rights Agent.
The Partnership hereby appoints the Rights Agent to act as agent for
the Partnership in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Partnership may from time to
time appoint such co-Rights Agents as it may deem necessary or desirable upon
ten (10) days' prior written notice to the Rights Agent. The Rights Agent shall
have no duty to supervise, and shall in no event be liable for, the acts and
omissions of any such co-Rights Agent.
Section 3. Issuance of Right Certificates.
(a) Until the earlier of (i) the Shares Acquisition Date or (ii) the
Close of Business on the tenth day (or such later date as may be determined by
the General Partner) after the date of the commencement by any Person (other
than the Corporation, any Subsidiary of the Corporation, any employee benefit
plan of the Corporation or of any Subsidiary of the Corporation or any Person or
entity organized, appointed or established by the Corporation for or pursuant to
the terms of any such plan) of, or of the first public announcement of the
intention of any Person (other than the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or of any Subsidiary
of the Corporation or any Person or entity organized, appointed or established
by the Corporation for or pursuant to the terms of any such plan) to commence
(which intention to commence remains in effect for five Business Days after such
announcement), a tender or exchange offer the consummation of which would result
in any Person becoming an Acquiring Person (including, in the case of both (i)
and (ii), any
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such date which is after the date of this Agreement and prior to the issuance of
the Rights), the earlier of such dates being herein referred to as the
"Distribution Date," (x) the Rights will be attached to the Partnership Units
registered in the names of the holders thereof and not by separate Right
Certificates, and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of the underlying Partnership
Units (including a transfer to the Partnership); provided, however, that if a
tender or exchange offer is terminated prior to the occurrence of a Distribution
Date, then no Distribution Date shall occur as a result of such tender or
exchange offer. As soon as practicable after the Distribution Date, the
Partnership will prepare and execute, the Rights Agent will countersign, and the
Partnership will send or cause to be sent by first- class, postage-prepaid mail,
to each record holder of Partnership Units as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Partnership, a Right Certificate, substantially in the form of Exhibit B hereto
(a "Right Certificate"), evidencing one Right for each Partnership Unit so held.
As of and after the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.
(b) With respect to Partnership Units outstanding as of the Record
Date, until the Distribution Date, the Rights will be attached to such
Partnership Units and the surrender for transfer of any Partnership Units
outstanding on the Record Date, shall also constitute the transfer of the Rights
associated with such Partnership Units. As a result of the execution of this
Agreement, on October 13, 2000, each Partnership Unit outstanding on such date
shall, subject to the terms and conditions of this Agreement, also represent one
Right and shall, subject to the terms and conditions of this Agreement,
represent the right to purchase one one-thousandth of a Preferred Unit.
(c) In the event that the Partnership purchases or acquires any
Partnership Units after the Record Date but prior to the Distribution Date, any
Rights associated with such Partnership Units shall be deemed canceled and
retired so that the Partnership shall not be entitled to exercise any Rights
associated with the Partnership Units which are no longer outstanding.
Section 4. Form of Right Certificate.
(a) The Right Certificates (and the forms of election to purchase and
of assignment to be printed on the reverse thereof) shall be substantially in
the form set forth in Exhibit B hereto and may have such marks of identification
or designation and such legends, summaries or endorsements printed thereon as
the Partnership may deem appropriate (which do not affect the duties or
responsibilities of the Rights Agent) 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 7,
Section 11 and Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-thousandths of a Preferred
Unit as shall be set forth therein at the
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price per one one-thousandth of a Preferred Unit set forth therein (the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section 22
hereof that represents Rights which are null and void pursuant to Section 7(e)
of this Agreement and any Right Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement or adjustment of any
other Right Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
"The Rights represented by this Right Certificate are or were
Beneficially Owned by a Person who was or became an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement). Accordingly, this Right Certificate
and the Rights represented hereby are null and void."
Provisions of Section 7(e) of this Agreement shall be operative whether
or not the foregoing legend is contained on any such Right Certificate. The
Partnership shall notify the Rights Agent to the extent that this Section 4(b)
applies.
Section 5. Countersignature and Registration.
The Right Certificates shall be executed on behalf of the Partnership
by the General Partner, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall not be valid
for any purpose unless so countersigned. In case any officer of the General
Partner who shall have signed any of the Right Certificates shall cease to be an
officer of the General Partner before countersignature by the Rights Agent and
issuance and delivery by the General Partner, such Rights Certificates may
nevertheless be countersigned by the Rights Agent and issued and delivered by
the General Partner with the same force and effect as though the person who
signed such Right Certificates had not ceased to be such officer of the General
Partner; and any Right Certificate may be signed on behalf of the General
Partner by any Person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the General Partner to sign such Right
Certificate, although at the date of the execution of this Agreement any such
Person was not such an officer.
Following the Distribution Date and receipt by the Rights Agent of a
list of record holders of Rights, the Rights Agent will keep or cause to be
kept, at its office set forth in Section 26 hereof or offices designated as the
appropriate place for surrender of such Right Certificate or transfer, books for
registration and transfer of the Right Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the certificate number and the date of each of the Right
Certificates.
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Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificate.
Subject to the provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the Close of Business on the Distribution Date, and at
or prior to the Close of Business on the earlier of the Redemption Date or the
Final Expiration Date, any Right Certificate or Right Certificates may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a like number of
one one-thousandths of a Preferred Unit (or, following a Triggering Event, other
securities, as the case may be) as the Right Certificate or Right Certificates
surrendered then entitle 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 Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Partnership shall be obligated to take
any action whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Right 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 Partnership or the Rights Agent shall reasonably
request. Thereupon the Rights Agent shall, subject to Section 4(b), Section 7(e)
and Section 14 hereof, countersign and deliver to the Person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as so requested.
The Partnership 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 Right Certificates. If the Partnership requires
the payment referred to in the immediately preceding sentence, then the Rights
Agent shall not be required to process any transaction until it receives notice
from the Partnership that the Partnership has received such payment.
Upon receipt by the Partnership and the Rights Agent of evidence
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Partnership's request,
reimbursement to the Partnership and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Partnership will make and deliver a new
Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
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Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the Rights
Agent at the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price for the total number of
one one-thousandths of a Preferred Unit (or other securities, as the case may
be) as to which such surrendered Rights are exercised, at or prior to the
earliest of (i) the Close of Business on October 13, 2010 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"); (iii) the time at which the Rights are exchanged
as provided in Section 24 hereof, or (iv) the consummation of a transaction
contemplated by Section 13(d) hereof.
(b) The Purchase Price for each one one-thousandth of a Preferred Unit
pursuant to the exercise of a Right shall initially be $84.44, shall be subject
to adjustment from time to time as provided in the next sentence and in Sections
11 and 13(a) hereof and shall be payable 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 Partnership shall (i) declare or pay any distribution on the Partnership
Units payable in Partnership Units or (ii) effect a subdivision, combination or
consolidation of the Partnership Units (by reclassification or otherwise than by
payment of distribution in Partnership Units) into a greater or lesser number of
Partnership Units, then in any such case, each Partnership Unit 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 Partnership Units outstanding immediately
prior to the occurrence of the event and the denominator of which shall be the
total number of Partnership Units outstanding immediately following the
occurrence of such event. The adjustment provided for in the preceding sentence
shall be made successively whenever such a distribution is made or paid or such
a subdivision, combination or consolidation is effected.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment of the Purchase Price for the Preferred Units (or other
securities, as the case may be) to be purchased and an amount equal to any
applicable tax or governmental charge required to be paid by the holder of such
Right Certificate in accordance with Section 6 hereof by certified check,
cashier's check or money order payable to the order of the Partnership, the
Rights Agent shall thereupon promptly (i) (A) if the Partnership, in its sole
discretion, shall have elected to deposit the Preferred Units issuable upon
exercise of
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the Rights hereunder into a depositary, requisition from the depositary agent
depositary receipts representing such number of one one-thousandths of a
Preferred Unit as are to be purchased and the Partnership will direct the
depositary agent to comply with such requests, (ii) when appropriate,
requisition from the Partnership the amount of cash to be paid in lieu of
issuance of fractional Units in accordance with Section 14 hereof, (iii) after
receipt of such depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate, registered in such
name or names as may be designated by such holder, and (iv) when appropriate,
after receipt thereof, deliver such cash to or upon the order of the registered
holder of such Right Certificate. In the event that the Partnership is obligated
to issue other securities (including Partnership Units) of the Partnership
pursuant to Section 11(a) hereof, the Partnership will make all arrangements
necessary so that such other securities are available for distribution by the
Rights Agent, if and when necessary to comply with this Agreement.
In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Right
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Right
Certificate no longer include the rights provided by Section 11(a)(ii) of this
Agreement and if less than all the Rights represented by such Right Certificate
were so exercised, the Rights Agent shall indicate on the Right 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 Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 6 and Section 14
hereof, or the Rights Agent shall place an appropriate notation on the Right
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 an Affiliate or Associate 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 General Partner has
determined is part of an agreement, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e), shall become null
and void without any further action and
10
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
Partnership shall notify the Rights Agent when this Section 7(e) applies and
shall use all reasonable efforts to insure that the provisions of this Section
7(e) and Section 4(b) hereof are complied with, but neither the Partnership nor
the Rights Agent shall have any liability to any holder of Right Certificates or
other Person as a result of the Partnership's 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 Partnership 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 such registered holder shall have
(i) properly completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise, and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Partnership or the Rights Agent shall reasonably
request.
Section 8. Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Partnership or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall
be canceled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement. The
Partnership shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other Right Certificate
purchased or acquired by the Partnership otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right Certificates to the
Partnership, or shall, at the written request of the Partnership, destroy such
canceled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Partnership.
Section 9. Reservation and Availability of Preferred Units.
At all times prior to the occurrence of a Section 11(a)(ii) Event, the
Partnership will cause to be reserved and kept available, the number of
Preferred Units 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 Units (and/or other securities) which may be
required to permit the exercise in full of the Rights pursuant to this
Agreement.
The Partnership covenants and agrees that it will take all such action
as may be necessary to ensure that all Preferred Units (or Partnership Units
and/or other securities,
11
as the case may be) delivered upon exercise of Rights shall, at the time of
delivery of such units or other securities (subject to payment of the Purchase
Price), be duly and validly authorized and issued (and, to the extent
applicable, fully paid and non-assessable) units or securities.
The Partnership further covenants and agrees that it will pay when due
and payable any and all U.S. federal and state taxes and charges (other than
taxes and charges based on income) which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Preferred Units (or
Partnership Units and/or other securities, as the case may be) upon the exercise
of Rights. The Partnership shall not, however, be required to pay any tax or
other charge which may be payable in respect of any transfer or delivery of
Right Certificates to a Person other than, or the issuance or delivery of
certificates or depositary receipts for the Preferred Units (or Partnership
Units and/or other securities, as the case may be) in a name other than that of,
the registered holder of the Right Certificate evidencing Rights surrendered for
exercise, or to issue or to deliver any certificates or depositary receipts for
Preferred Units (or Partnership Units and/or other securities, as the case may
be) upon the exercise of any Rights, until any such tax or other charge shall
have been paid (any such tax or other charge being payable by the holder of such
Right Certificate at the time of surrender) or until it has been established to
the Partnership's reasonable satisfaction that no such tax or other charge is
due.
Section 10. Preferred Units Record Date.
Each Person in whose name any Preferred Units (or Partnership Units
and/or other securities, as the case may be) are issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of
the Preferred Units (or Partnership Units and/or other securities, as the case
may be) represented thereby on the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable taxes and other governmental charges) was made; provided,
however, that, if the date of such surrender and payment is a date upon which
the Preferred Units (or Partnership Units and/or other securities, as the case
may be) transfer books of the Partnership are closed, such person shall be
deemed to have become the record holder of such units on the next succeeding
Business Day on which the Preferred Units (or Partnership Units and/or other
securities, as the case may be) transfer books of the Partnership are open.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights.
The Purchase Price, the number and kind of Units covered by each Right
and the number of Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
12
(a) (i) In the event the Partnership shall at any time after the
date of this Agreement (A) declare a distribution on the Preferred Units payable
in Preferred Units, (B) subdivide the outstanding Preferred Units, (C) combine
the outstanding Preferred Units into a smaller number of Preferred Units or (D)
issue any units in a reclassification of the Preferred Units (including any such
reclassification in connection with a consolidation or merger in which the
Partnership is the continuing or surviving entity), except as otherwise provided
in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such distribution or of the effective date of
such subdivision, combination or reclassification, and the number and kind of
units 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 units which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Units transfer
books of the Partnership were open, such holder would have owned upon such
exercise and been entitled to receive by virtue of such 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 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
Partnership Units (or, in the discretion of the General Partner, one
one-thousandths of a Preferred Unit) as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of one
one-thousandths of a Preferred Unit for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event, and
dividing that product by (y) 50% of the then current per unit market price of
the Partnership's Partnership Units (determined pursuant to Section 11(d)
hereof) on the date of such first occurrence (such number of units being
referred to as the "Adjustment Units"); 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
securities to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) and the Rights become so exercisable (and the
General Partner has determined to make the Rights exercisable into fractions of
a Preferred Unit), notwithstanding any other provision of this Agreement, to the
extent necessary and permitted by applicable law, each Right
13
shall thereafter represent the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this Agreement, (x)
a number of (or fractions of) Partnership Units (up to the maximum number of
Partnership Units which may permissibly be issued) and (y) a number of (or
fractions of) one one-thousandths of a Preferred Unit or a number of (or
fractions of) other equity securities of the Partnership (or, in the discretion
of the General Partner, debt) which the General Partner has determined to have
the same aggregate current market value (determined pursuant to Section 11(d)(i)
and (ii) hereof, to the extent applicable) as one Partnership Unit (such number
of, or fractions of, Preferred Units, debt, or other equity securities or debt
of the Partnership being referred to as a "unit equivalent") equal in the
aggregate to the number of Adjustment Units; provided, however, if sufficient
Partnership Units and/or unit equivalents are unavailable, then the Partnership
shall, to the extent permitted by applicable law, take all such action as may be
necessary to authorize additional Partnership Units or unit equivalents for
issuance upon exercise of the Rights, including the calling of a meeting of or
seeking the consent of unitholders, if applicable; and provided, further, that
if the Partnership is unable to cause sufficient Partnership Units and/or unit
equivalents 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 Units upon exercise at the Adjusted Purchase Price (as such terms are
hereinafter defined). As used herein, the term "Adjusted Number of Units" shall
be equal to that number of (or fractions of) Partnership Units (and/or unit
equivalents) equal to the product of (x) the number of Adjustment Units and (y)
a fraction, the numerator of which is the number of Partnership Units (and/or
equivalents) available for issuance upon exercise of the Rights and the
denominator of which is the aggregate number of Adjustment Units otherwise
issuable upon exercise in full of all Rights (assuming there were a sufficient
number of Partnership Units 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 General Partner may, but shall not
be required to, establish procedures to allocate the right to receive
Partnership Units and unit equivalents upon exercise of the Rights among holders
of Rights.
(b) In case the Partnership shall fix a record date for the issuance of
rights (other than the Rights), options or warrants to all holders of Preferred
Units entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase Preferred Units (or securities having
the same rights, privileges and preferences as the Preferred Units ("equivalent
preferred units")) or securities convertible into Preferred Units or equivalent
preferred units at a price per Preferred Unit or equivalent preferred unit (or
having a conversion price per unit, if a security convertible into Preferred
Units or equivalent preferred units) less than the then current per unit market
price of the Preferred Units (as determined pursuant to Section 11(d) hereof) on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Preferred Units
14
outstanding on such record date plus the number of Preferred Units which the
aggregate offering price of the total number of Preferred Units and/or
equivalent preferred units so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current per unit market price, and the denominator of which shall be the
number of Preferred Units outstanding on such record date plus the number of
additional Preferred Units and/or equivalent preferred units 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 other than cash, the
value of such consideration shall be determined in good faith by the General
Partner, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the holders of the
Rights. Preferred Units owned by or held for the account of the Partnership
shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Partnership shall fix a record date for the making of a
distribution to all holders of the Preferred Units (including any such
distribution made in connection with a consolidation or merger in which the
Partnership is the continuing or surviving entity) of evidences of indebtedness
or assets (other than a regular quarterly cash distribution or a distribution
payable in Preferred Units) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the then current per unit market price (as determined pursuant to
Section 11(d) hereof) of the Preferred Units on such record date, less the fair
market value (as determined in good faith by the General Partner, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and the holders of the Rights) of the
portion of the assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preferred Unit and the
denominator of which shall be such current per unit market price of the
Preferred Units. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
per unit market price" of any security (a "Security") that is publicly traded
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 unit of such Security for the thirty
(30) consecutive Trading Days (as such term is hereinafter defined) immediately
prior to and not including such date; provided, however,
15
that in the event that the current per unit 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 units of
such Security or securities convertible into such units, or (B) any subdivision,
combination or reclassification of such Security and prior to the expiration of
thirty (30) Trading Days after and not including the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the current per unit market
price shall be appropriately adjusted to reflect the current market price per
unit 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 as reported on the Nasdaq Stock Market ("Nasdaq") or such other market or
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
General Partner. If on any such date no such market maker is making a market in
the Security, the fair value of the Security on such date as determined in good
faith by the General Partner shall be used. 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. Subject to Section 11(d)(ii), if any Security is not
publicly traded, "current per unit market price" of such Security shall mean the
fair market value per unit as determined in good faith by the General Partner,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the Rights.
(ii) For the purpose of any computation hereunder, the
"current per unit market price" of the Preferred Units if they are publicly
traded shall be determined in accordance with the method set forth in Section
11(d)(i). If the Preferred Units are not publicly traded, the "current per unit
market price" of the Preferred Units shall be conclusively deemed to be the
current per unit market price of the Partnership Units as determined pursuant to
Section 11(d)(i) (appropriately adjusted to reflect any split, distribution or
similar transaction occurring after the date hereof), multiplied by one thousand
(1,000). If neither the Partnership Units nor the Preferred Units are publicly
listed or traded, "current per unit market price" shall mean the fair market
value per unit as determined in good faith by the General Partner, whose
determination shall be
16
described in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-thousandth of a Preferred Unit or one
one-thousandth of any other unit or security as the case may be. Notwithstanding
the first sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three (3) years from
the date of the transaction which mandates such adjustment or (ii) the Final
Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii)
or Section 13(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any units of the Partnership other than Preferred
Units, thereafter the number of other units so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Units contained in Section 11(a) through (c), inclusive, and the
provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Units
shall apply on like terms to any such other units.
(g) All Rights originally issued by the Partnership subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the Adjusted Purchase Price, the number of one one-thousandths of a
Preferred Unit purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Partnership shall have exercised its election so
provided in Section 11(i) hereof, upon adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and 11(c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the Adjusted Purchase Price, that number of
one one-thousandths of a Preferred Unit calculated to the nearest one
one-thousandth of a Preferred Unit) obtained by (i) multiplying (A) the number
of Preferred Units covered by a Right immediately prior to this adjustment of
the Purchase Price by (B) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Partnership may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of one one-thousandths of a Preferred Unit purchasable upon the
exercise of a Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be
17
exercisable for the number of one one-thousandths of a Preferred Unit for which
a Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one one-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 Partnership shall make a public announcement of its election
to adjust the number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made, a copy of
which public announcement shall promptly be delivered to the Rights Agent. This
record date may be the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued, shall be at least
ten (10) days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Partnership shall, as promptly as
practicable, cause to be distributed to holders of record of Right Certificates
on such record date Right Certificates evidencing, subject to Section 14 hereof,
the additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Partnership, shall cause to be
distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Partnership, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-thousandths of a Preferred Unit issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one one-thousandths of
a Preferred Unit which were expressed in the initial Right 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 number of one
one-thousandths of a Preferred Unit, Common Units or other securities issuable
upon exercise of the Rights, the Partnership shall take any action which may, in
the opinion of its counsel, be necessary in order that the Partnership may
validly and legally issue such number of fully paid and non-assessable one
one-thousandths of a Preferred Unit, Common Units or other securities at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Partnership may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
the Preferred Units, Partnership Units or other
18
securities of the Partnership, if any, issuable upon such exercise over and
above the Preferred Units, Partnership Units or other securities of the
Partnership, if any, issuable upon exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Partnership
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional units or other
securities, as the case may be, upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Partnership 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 (1) (i) any consolidation or subdivision of the Preferred Units, (ii)
issuance wholly for cash of Preferred Units at less than the current market
price, (iii) issuance wholly for cash of Preferred Units or securities which by
their terms are convertible into or exchangeable for Preferred Units, (iv) unit
distributions or (v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Partnership to holders of its Preferred Units
shall not be taxable to holders of Preferred Units or (2) the Purchase Price is
reduced to correspond to any similar reduction that may be effected pursuant to
Section 11 (m) of Rights Agreements, dated as of October 13, 2000, between the
Corporation and American Stock Transfer & Trust Company.
(n) The Partnership covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Partnership in a transaction which does not violate Section
11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary
of the Partnership in a transaction which does not violate Section 11(o)
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
Partnership and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Partnership and/or any of its Subsidiaries in one or
more transactions each of which does not violate Section 11(o) hereof), if (x)
at the time of or immediately after such consolidation, merger, sale or transfer
there are any charter or bylaw provisions or any rights, warrants or other
instruments or securities outstanding or agreements in effect or other actions
taken, which would materially 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 security holders of
the Person who constitutes, or would constitute, the Principal Party for
purposes of Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and Associates. The
Partnership shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Partnership and such other Person shall have
executed and delivered to the Rights Agent a supplemental agreement evidencing
compliance with this Section 11(n).
19
(o) The Partnership covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23, Section 24 or Section 27
hereof, take (or permit any Subsidiary to take) any action the purpose 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.
(p) 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 affect the rights represented by the Rights under this Agreement,
including the rights represented by Section 13.
Section 12. Certificate of Adjusted Purchase Price or Number of
Securities.
Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Partnership shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief reasonably detailed statement of the facts and
computations accounting for such adjustment, (b) file with the Rights Agent and
with each transfer agent for the Partnership Units and the Preferred Units a
copy of such certificate and (c) mail a brief summary thereof to each holder of
a Right Certificate in accordance with Section 25 hereof. The Rights Agent shall
be fully protected in relying on any such certificate and on any adjustment
therein contained and shall have no duty with respect to and shall not be deemed
to have knowledge of such 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 Corporation shall consolidate with, or merge
with and into, any Interested Stockholder or, if in such merger or consolidation
all holders of Common Shares are not treated alike, any other Person, (y) the
Corporation shall consolidate with, or merge with, any Interested Stockholder
or, if in such merger or consolidation all holders of Common Shares are not
treated alike, any other Person, and the Corporation shall be the continuing or
surviving corporation of such consolidation or merger (other than, in a case of
any transaction described in (x) or (y), a merger or consolidation which would
result in all of the securities generally entitled to vote in the election of
directors ("voting securities") of the Corporation 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 securities
of the Corporation 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 Corporation shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
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
Corporation and
20
its Subsidiaries (taken as a whole) to any Interested Stockholder or
Stockholders or, if in such transaction all holders of Common Shares are not
treated alike, any other Person (other than the Corporation or any Subsidiary of
the Corporation in one or more transactions each of which does not violate
Section 11(o) hereof), then, and in each such case (except as provided in
Section 13(d) hereof), proper provision shall be made so that
(1) if in connection with such Section 13 Event there does not
also occur substantially concurrently a Partnership Section 13
Event (as defined below) or to the extent that a holder of a
Right does not elect to be governed by subparagraph (2) of
this Section 13(a), (i) each holder of a Right, except as
provided in 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 and in lieu of Preferred Units, such
number of Common Shares of the Principal Party (as hereinafter
defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall equal the
result obtained by (A) multiplying the then current Purchase
Price by the number of one one-thousandths of a Preferred Unit
for which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to Section
11(a)(ii)) and dividing that product by (B) 50% of the then
current per share market price of the Common Shares of such
Principal Party (determined pursuant to Section 11(d) hereof)
on the date of consummation of such Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Partnership pursuant to this
Agreement; (iii) the term "Partnership" shall thereafter be
deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of
a Section 13 Event; 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 connection with
the consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to
such number of freely tradable shares of Common Shares
thereafter deliverable upon the exercise of the Rights; or
(2) if in connection with such Section 13 Event there also occurs
substantially concurrently with respect to the Partnership a
merger, consolidation, sale or transfer of the type described
in clauses (x), (y) or (z) of this Section 13(a) (a
"Partnership Section 13 Event") and the holder of a Right at
the time of exercise of such Right elects to be governed by
this subparagraph (2), (i) each electing holder of a Right,
except as provided in 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
21
Agreement and in lieu of Preferred Units, such number of
common securities of the Partnership Principal Party (as
defined below) not subject to any liens, encumbrances, rights
of first refusal or other adverse claims as shall have the
right (x) to convert into, (y) be exchanged for, or (z) be
redeemed for cash in an amount equal the current market value
at the time of redemption of, in each case, a number of Common
Shares of the Principal Party equal the result obtained by (A)
multiplying the then current Purchase Price by the number of
one one-thousandths of a Preferred Unit for which a Right is
then exercisable (without taking into account any adjustment
previously made pursuant to Section 11(a)(ii)) and dividing
that product by (B) 50% of the then current per unit market
price of the Common Shares of such Principal Party (determined
pursuant to Section 11(d) hereof) on the date of consummation
of such Partnership Section 13 Event (ii) such Partnership
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Partnership pursuant to this
Agreement; (iii) the term "Partnership" shall thereafter be
deemed to refer to such Partnership Principal Party, it being
specifically intended that the provisions of Section 11 hereof
shall apply only to such Partnership Principal Party following
the first occurrence of a Partnership Section 13 Event; and
(iv) such Partnership Principal Party and such Principal Party
shall take such steps (including, but not limited to, the
reservation of a sufficient number of their relevant
securities) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to such number of common units, common
shares or other such common securities of the Partnership
Principal Party and Common Shares of the Principal Party
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), the Person that is the issuer of any
securities into which Common Shares of the Corporation are converted in such
merger or consolidation, and if no securities are so issued, the Person that is
the other party to such merger or consolidation (including, if applicable, the
Corporation or the Partnership, as the case may be, if it is the surviving
entity); and (ii) in the case of any transaction described in clause (z) of the
first sentence of Section 13(a), 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 of the foregoing
cases, (1) if the Common Shares of such Person are not at such time and have not
been continuously over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Shares of
22
which are and have been so registered, "Principal Party" shall refer to such
other Person; (2) in case such Person is a Subsidiary, directly or indirectly,
of more than one Person, the Common Shares of two or more of which are and have
been so registered, "Principal Party" shall refer to whichever of such Persons
is the issuer of the Common Shares having the greatest aggregate market value;
and (3) in case such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or indirectly, by the
same Person, the rules set forth in (1) and (2) above shall apply to each of the
chains of ownership having an interest in such joint venture as if such party
were a Subsidiary of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in such Person bear
to the total of such interests.
(c) "Partnership Principal Party" shall mean, in the case of a
Partnership Section 13 Event, the Person into or with which the Partnership
merges or consolidates, or to whom the Partnership transfers 50% or more of its
assets or earning power and that is the issuer of any securities which are
convertible (directly or indirectly) into, exchangeable for, or redeemable for
Common Shares of the Principal Party or cash based on the value of Common Shares
of the Principal Party.
(d) The Partnership shall not consummate any Partnership Section 13
Event unless the Principal Party and/or Partnership Principal Party shall have a
sufficient number of its authorized shares of common stock, or other common
securities, as the case may be which 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 Partnership and such Principal Party, or
Partnership Principal Party, shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or transfer
mentioned in paragraph (a) of this Section 13, the Principal Party, or
Partnership 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, and will use its best efforts to cause such
registration statement to (A) become effective as soon as practicable after such
filing and (B) remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Final 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
23
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party or Partnership Principal Party, as the case
may be which comply in all respects with the requirements for registration on
Form 10 under the Exchange Act; provided, however, that the Principal Party
and/or the Partnership Principal Party may be relieved of its obligations under
the forgoing clauses (i) and (ii) if it receives the written waiver of holders
of a majority of the Rights (excluding any Rights that are null and void
pursuant to Section 7(e)).
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) and shall survive any exercise thereof.
(e) The Partnership shall not consummate any Partnership Section 13
Event unless the Principal Party or Partnership Principal Party, as the case may
be, shall provide to the holders of, or holders of Rights to purchase, common
securities of the Partnership Principal Party that may be converted into or
exchanged for Common Shares of the Principal Party, registration rights with
respect to such Principal Party Common Shares that are substantially the same as
any registration rights such holders have with respect to their Partnership
Units or any securities into which such Partnership Units are convertible or
exchangeable and to which such holders are entitled immediately prior to the
relevant Section 13 Event.
(f) Notwithstanding anything in this Agreement to the contrary, Section
13 shall not be applicable to a transaction described in subparagraphs (x) and
(y) of Section 13(a) or in a Partnership Section 13 Event 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) the form of
consideration offered in 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 Section 13(f), all Rights hereunder shall
expire.
Section 14. Fractional Rights and Fractional Units.
(a) The Partnership shall not be required to issue fractions of Rights
or to distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale
24
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 as reported on Nasdaq or such other market or 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 General Partner. 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 fair value of the Rights on such date as determined
in good faith by the General Partner.
(b) The Partnership shall not be required to issue fractions of
Preferred Units (other than fractions which are one one-thousandth or integral
multiples of one one-thousandth of a Preferred Unit) upon exercise of the Rights
or to distribute certificates which evidence fractional Preferred Units (other
than fractions which are one one-thousandth or integral multiples of one
one-thousandth of a Preferred Unit). Fractions of Preferred Units in integral
multiples of one one-thousandth of a Preferred Unit may, at the election of the
Partnership, be evidenced by depositary receipts, pursuant to an appropriate
agreement between the Partnership and a depositary selected by it; provided that
such agreement shall provide that the holders of such depositary receipts shall
have the rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Units represented by such depositary
receipts. In lieu of fractional Preferred Units that are not one one-thousandth
or integral multiples of one one-thousandth of a Preferred Unit, the Partnership
shall pay to the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Preferred Unit. For the purposes of
this Section 14(b), the current market value of a Preferred Unit shall be the
closing price of a Preferred Unit (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 giving rise to the right to receive Partnership Units,
unit equivalents (other than Preferred Units) or other securities upon the
exercise of a Right, the Partnership shall not be required to issue fractions of
such Partnership Units, unit equivalents or other securities upon exercise of
the Rights or to distribute certificates which evidence fractions of such
Partnership Units, unit equivalents or other securities. In lieu of fractional
units of such Partnership Units, unit equivalents or other securities, the
Partnership may pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein
25
provided an amount in cash equal to the same fraction of the current market
value of a unit of such Partnership Units, unit equivalents or other securities.
For purposes of this Section 14(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 unit equivalent is not traded,
each such equivalent shall have the value of one one-thousandth of a Preferred
Unit.
(d) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional unit upon
exercise of a Right (except as provided above). The Rights Agent shall not be
deemed to have knowledge of, and shall have no duty in respect of, the issuance
of fractional Rights or fractional units until it shall have received
instructions from the Partnership concerning the issuance of the fractional
Rights or fractional units upon which instructions the Rights Agent may
conclusively rely.
Section 15. Rights of Action.
All rights of action in respect of this Agreement, excepting
the rights of action given to the Rights Agent under Section 18 hereof, are
vested in the respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the Partnership
Units); and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Partnership Units), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Partnership Units), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Partnership to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right Certificate (or, prior
to the Distribution Date, of the Partnership Units) in the manner provided in
such Right Certificate and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened violations
of the obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders.
Every holder of a Right, by accepting the same, consents and agrees
with the Partnership and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Partnership Units;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights
26
Agent if surrendered at the office or offices 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;
(c) subject to Section 7(f) hereof, the Partnership and the Rights
Agent may deem and treat the Person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Partnership Units) is registered
as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right Certificate
or the associated Partnership Units made by anyone other than the Partnership or
the Rights Agent) for all purposes whatsoever, and neither the Partnership nor
the Rights Agent, subject to the last sentence of Section 7(e) hereof, shall be
required to be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither
the Partnership 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, judgment, decree or
ruling (whether interlocutory or final) 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; provided, however, the Partnership must use its
best efforts to have any such order, judgment, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Unitholder.
No holder, as such, of any Right Certificate shall be entitled to vote,
receive distributions or be deemed for any purpose the holder of the Preferred
Units or any other securities of the Partnership which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer upon the
holder of any Right Certificate, as such, any of the rights of a unitholder of
the Partnership or a stockholder of any other Person whose securities are
purchasable pursuant to the Rights or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any partnership (if applicable) or corporate
action, or to receive notice of meetings or other actions affecting unitholders
or stockholders (except as provided in Section 25 hereof), or to receive
distributions or to exercise any preemptive or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
The Partnership agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent,
27
its reasonable expenses and counsel fees and other disbursements incurred in the
preparation, execution, delivery, amendment, administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The
Partnership also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, damage, judgment, fine, penalty, claim,
demand, settlement, cost or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent, for any action
taken, suffered or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including without limitation the costs and
expenses of defending against any claim of liability in the premises. The
indemnity provided for herein shall survive the expiration of the Rights and the
termination of this Agreement.
The Rights Agent shall be authorized and protected and shall incur no
liability for, or in respect of, any action taken, suffered or omitted by it in
connection with, its acceptance and administration of this Agreement in reliance
upon any Right Certificate, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document (collectively, "Documents")
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons. The Rights Agent
shall not be deemed to have knowledge of, and shall have no duty in respect of,
any such Documents, until it receives notice or instructions in respect thereof.
In no case will the Rights Agent be liable for special, indirect, punitive,
incidental or consequential loss or damage of any kind whatsoever, even if the
Rights Agent has been advised of the likelihood of such loss or damage.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Any Person into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any Person resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any Person succeeding to the stock transfer or all or
substantially all of the stockholder services business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such Person would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of a predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
28
Certificates and in this Agreement. In case at any time the name of the Rights
Agent shall be changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent.
The Rights Agent undertakes only those duties and obligations expressly
imposed by this Agreement (and no implied duties or obligations) upon the
following terms and conditions, by all of which the Partnership and the holders
of Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Partnership), and the advice or opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent and the
Rights Agent shall incur no liability for or in respect of, any action taken,
suffered or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of an Acquiring Person and the
determination of the current market price of any Security) be proved or
established by the Partnership prior to taking, suffering or omitting any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Chief Executive Officer (or any co-Chief Executive Officer), the President, any
Vice President, the Treasurer or the Secretary of the General Partner of the
Partnership and delivered to the Rights Agent; and such certificate shall be
full authorization and protection to the Rights Agent and the Rights Agent shall
incur no liability in respect of any action taken, suffered or omitted in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for, or by reason of any
liability in respect of, the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except its countersignature on such
Right 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 Partnership only.
29
(e) The Rights Agent shall not be under any liability or responsibility
in respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Partnership of any
covenant or condition contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming null and void pursuant to Section 7(e) hereof) or
any adjustment required under the provisions of Section 11 or Section 13 hereof
or responsible for the manner, method or amount of 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 Right Certificates
after receipt of the certificate described in Section 12 hereof); nor shall it
by any act hereunder be deemed to make any representation or warranty as to the
authorization of any Preferred Units or Partnership Units to be issued pursuant
to this Agreement or any Right Certificate or as to whether any Preferred Units
or Partnership Units will, when issued, be validly authorized and issued, fully
paid and non-assessable.
(f) The Partnership 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 only accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer (or any co-Chief
Executive Officer), the President, any Vice President, the Treasurer or the
Secretary of the General Partner and to apply to such officers for advice or
instructions in connection with its duties, and such instructions shall be full
authorization and protection to the Rights Agent and the Rights Agent shall
incur no liability for or in respect of any action taken, suffered or omitted by
it in good faith or lack of action in accordance with instructions of any such
officer or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Partnership
may, at the option of the Rights Agent, set forth in writing any action proposed
to be taken or omitted by the Rights Agent under this Agreement and the date on
or after which such action shall be taken or suffered or such omission shall be
effective. The Rights Agent shall not be liable or responsible for any action
taken or suffered by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the date specified in such
application (which date shall not be less than five Business Days after the date
the General Partner actually receives such application, unless any such officer
shall have consented in writing to an earlier date) unless, prior to taking any
such action (or the effective date in the case of an omission), the Rights Agent
shall have received written instruction from any one of the Chairman of the
Board, the Chief Executive Officer (or
30
any co-Chief Executive Officer), the President, any Vice President, the
Treasurer or the Secretary of the General Partner in response to such
application specifying the action to be taken, suffered or omitted.
(h) The Rights Agent and any stockholder, affiliate, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Partnership or become pecuniarily interested in any
transaction in which the Partnership may be interested, or contract with or lend
money to the Partnership or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Partnership or for any other
Person or 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, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Partnership or any other Person resulting from any
such act, default, neglect or misconduct, absent gross negligence, bad faith or
willful misconduct 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 if
it believes 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 not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the
Partnership.
Section 21. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Partnership and to each transfer agent of the Partnership
Units or Preferred Units by registered or certified mail, and to the holders of
the Right Certificates by first-class mail. The Partnership may remove the
Rights Agent or any successor Rights Agent upon sixty (60) 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 Partnership Units or Preferred Units by
registered or certified mail, and to holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Partnership shall appoint a successor
to the Rights Agent. If the Partnership
31
shall fail to make such appointment within a period of sixty (60) days after
giving notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Partnership), then the registered holder of
any Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Partnership or by such a court, shall be a Person organized and doing
business under the laws of the United States or of the State of New York (or of
any other state of the United States so long as such Person is authorized to do
business in the State of New York), in good standing, having an office in the
State of New York, and which is subject to supervision or examination by federal
or state authority. 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 Partnership shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Partnership Units or Preferred Units, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Partnership may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by the General
Partner to reflect any adjustment or change in the Purchase Price and the number
or kind or class of units or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of this Agreement.
In addition, in connection with the issuance or sale of Partnership
Units following the Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date, the Partnership (a) shall with respect to
Partnership Units so issued or sold pursuant to the exercise of options or under
any employee plan or arrangement, or upon the exercise, conversion or exchange
of securities, notes or debentures issued by the Partnership, and (b) may, in
any other case, if deemed necessary or appropriate by the General Partner, issue
Right Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) the Partnership shall
not be obligated to issue any such Right Certificates if, and to the extent
that, the Partnership shall be advised by counsel that such issuance would
create a significant risk
32
of material adverse tax consequences to the Partnership or the Person to whom
such Right Certificate would be issued, and (ii) no Right Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) (i) The General Partner may, at its option, redeem all but not less
than all of the then outstanding Rights at a redemption price of $.01 per Right,
as such amount may be appropriately adjusted to reflect any unit split, unit
distribution or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price"), at
any time prior to the earlier of (x) the occurrence of a Section 11(a)(ii) Event
or (y) the Final Expiration Date.
(ii) In addition, the General Partner may, at its option, at any time
following the occurrence of a Section 11(a)(ii) Event and the expiration of any
period during which the holder of Rights may exercise the rights under Section
11(a)(ii) but prior to any Section 13 Event redeem all but not less than all of
the then outstanding Rights at the Redemption Price (x) in connection with any
merger, consolidation or sale or other transfer (in one transaction or in a
series of related transactions) of assets or earning power aggregating 50% or
more of the earning power of the Corporation and its subsidiaries (taken as a
whole) in which all holders of Partnership Units are treated alike and not
involving (other than as a holder of Partnership Units being treated like all
other such holders) an Interested Stockholder or (y)(aa) if and for so long as
the Acquiring Person is not thereafter the Beneficial Owner of 15% of the Common
Shares, and (bb) at the time of redemption no other Persons are Acquiring
Persons.
(b) In the case of a redemption permitted under Section 23(a)(i),
immediately upon the date for redemption determined by the General Partner
ordering the redemption of the Rights, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price for each Right so held. In the case of a redemption permitted only under
Section 23(a)(ii), the right to exercise the Rights will terminate and represent
only the right to receive the Redemption Price upon the later of ten (10)
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
Partnership shall promptly give public notice and notify the Rights Agent 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
(10) days after such date for redemption of the Rights as determined by the
General Partner, the Partnership shall mail a notice of redemption to all the
holders of the then outstanding Rights at their last addresses as they appear
upon the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Partnership Units. Any
notice which is mailed in the manner herein provided shall be deemed given,
33
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 Partnership nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any manner other than
that specifically set forth in this Section 23 and other than in connection with
the purchase of Partnership Units prior to the Distribution Date.
(c) The Partnership 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 in accordance with this Agreement 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 the Distribution Date, on the registry books of the
transfer agent of the Partnership Units, and upon such action, all outstanding
Rights and Right Certificates shall be null and void without any further action
by the Partnership.
Section 24. Exchange.
(a) The General Partner may, at its option, at any time after the time
that 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 null and void pursuant to the provisions of Section 7(e)) for Partnership
Units of the Partnership at an exchange ratio of one Partnership Unit per Right,
appropriately adjusted to reflect any unit split, unit distribution or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing,
the General Partner shall not be empowered to effect such exchange at any time
after any Person (other than the Partnership, any Subsidiary of the Partnership,
any employee benefit plan of the Partnership or any such Subsidiary, any Person
organized, appointed or established by the Partnership 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 Partnership Units then outstanding.
(b) Immediately upon the action of the General Partner ordering the
exchange of any Rights pursuant to subsection (a) of this Section 24 and without
any further action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of the holders of such Rights
shall be to receive that number of Partnership Units equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Partnership
shall promptly give public notice and notify the Rights Agent 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 Partnership 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
34
notice. Each such notice of exchange will state the method by which the exchange
of the Partnership Units for Rights will be effected and, in the event of any
partial exchange, the number of Rights will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become null and void pursuant to the provisions of Section 7(e)) held
by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Partnership, at
its option, may substitute Preferred Units (or equivalent preferred units, as
such term is defined in Section 11(b) hereof) for some or all of the Partnership
Units exchangeable for Rights, at the initial rate of one one-thousandth of a
preferred unit (or equivalent preferred unit) for each Partnership Unit, as
appropriately adjusted to reflect adjustments in the voting rights of the
Preferred Units pursuant to the terms thereof, so that the fraction of a
Preferred Unit delivered in lieu of each Partnership Unit shall have the same
voting rights as one Partnership Unit.
Section 25. Notice of Certain Events.
(a) In case the Partnership shall propose (i) to pay any distribution
payable in units of any class to the holders of its Preferred Units or to make
any other distribution to the holders of its Preferred Units (other than a
regularly quarterly cash distribution), (ii) to offer to the holders of its
Preferred Units rights or warrants to subscribe for or to purchase any
additional Preferred Units or units of any class or any other securities, rights
or options, (iii) to effect any reclassification of its Preferred Units (other
than a reclassification involving only the subdivision of outstanding Preferred
Units), (iv) to effect any consolidation or merger into or with any other Person
(other than a Subsidiary of the Partnership in a transaction which does not
violate Section 11(n) hereof), or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other transfer) in
one or more transactions, of 50% or more of the assets or earning power of the
Partnership and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Partnership and/or any of its Subsidiaries in one or
more transactions each of which does not violate Section 11(n) hereof), or (v)
to effect the liquidation, dissolution or winding up of the Partnership, then,
in each such case, the Partnership shall give to the Rights Agent and to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action and file a certificate with the Rights Agent to that
effect, which shall specify the record date for the purposes of such
distribution, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Preferred Units, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least twenty (20) days prior to the record date for
determining holders of the Preferred Units 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
35
proposed action or the date of participation therein by the holders of the
Preferred Units, whichever shall be the earlier.
(b) In case of a Section 11(a)(ii) Event, then (i) the Partnership
shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the occurrence of
such event, which notice shall describe such event and the consequences of such
event to holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph (a) to Preferred Units shall be deemed
thereafter to refer also to Partnership Units and/or, if appropriate, other
securities of the Partnership.
Section 26. Notices.
Notices or demands authorized by this Agreement to be given or made by
the Rights Agent or by the holder of any Right Certificate to or on the
Partnership 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:
Reckson Operating Partnership, L.P.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Partnership or by the
holder of any Right Certificate to or on the Rights Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Partnership) as follows:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Notices or demands authorized by this Agreement to be given or made by
the Partnership or the Rights Agent to the holder of any Right Certificate or,
if prior to the Distribution Date, to the holders of Partnership Units 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 Partnership.
Section 27. Supplements and Amendments.
Except as set forth in the penultimate sentence of this Section 27, prior to the
Distribution Date, the Partnership may and the Rights Agent shall, if the
Partnership so directs, supplement or amend any provision of this Agreement
without the approval of an
36
holders of Partnership Units. From and after the Distribution Date, the
Partnership may and the Rights Agent shall, if the Partnership so directs,
supplement or amend this Agreement without the approval of any holders of Right
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) to shorten or lengthen any time period hereunder
or (iv) to change or supplement the provisions hereunder in any manner which the
Partnership may deem necessary or desirable and which shall not adversely affect
the interests of the holders of Right Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided, however,
that this Agreement may not be supplemented or amended to lengthen, pursuant to
clause (iii) of this sentence, (A) a time period relating to when the Rights may
be redeemed at such time as the Rights are not then redeemable, or (B) any other
time period unless any such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to, the holders of
Rights. Upon the delivery of a certificate from the General Partner which states
that the proposed supplement or amendment is in compliance with the terms of
this Section 27, and if requested by the Rights Agent an opinion of counsel, the
Rights Agent shall execute such supplement or amendment, provided that such
supplement or amendment does not adversely affect the rights or obligations of
the Rights Agent under Section 18 or Section 20 of this Agreement. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Partnership Units.
Section 28. Determination and Actions by the General Partner.
The General Partner shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the
General Partner or the Partnership, 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, without limitation, a determination to redeem or not
redeem the Rights or to amend the Agreement and whether any proposed amendment
adversely affects the interests of the holders of Right Certificates). For all
purposes of this Agreement, any calculation of the number of Common Shares or
other securities outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding Common Shares or
Partnership Units or any other securities of which any Person is the Beneficial
Owner, shall be made in accordance with the last 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. 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 General Partner in good
faith (and the Rights Agent shall be able to assume that the General Partner
acted in such good faith), shall (x) be final, conclusive and binding on the
Partnership, the Rights Agent, the holders of the Right Certificates and all
other
37
Persons, and (y) not subject the General Partner to any liability to the holders
of the Right Certificates.
Section 29. Successors.
All the covenants and provisions of this Agreement by or for the benefit of the
Partnership or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 30. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person or other
entity other than the Partnership, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the Partnership
Units) any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Partnership,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Partnership Units).
Section 31. Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 32. Governing Law.
This Agreement, each Right and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware
and for all purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts to be made and performed entirely
within such State; except that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
Section 33. Counterparts.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
38
Section 34. Descriptive Headings.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the date and year first above written.
RECKSON OPERATING
PARTNERSHIP, L.P.
Attest:
By: Reckson Associates Realty Corp., its
general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMERICAN STOCK
TRANSFER & TRUST
COMPANY
Attest:
By:_____________________________ By:_______________________________
Name: __________________________ Name: ____________________________
Title: ___________________________ Title: ___________________________
40
Exhibit A
SUPPLEMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
ESTABLISHING
SERIES F JUNIOR PARTICIPATING PREFERRED PARTNERSHIP UNITS
OF
LIMITED PARTNERSHIP INTEREST
In accordance with Sections 4.2 and 14.1 B(3) of the Amended and
Restated Agreement of Limited Partnership, dated as of June 2, 1995, as amended
on December 6, 1995, April 13, 1998, June 30, 1998 and May 24, 1999 (the
"Partnership Agreement"), the Partnership Agreement is hereby supplemented to
establish a series of up to 100,000 preferred units of limited partnership
interest of Reckson Operating Partnership, L.P. (the "Partnership") which shall
be designated "Series F Junior Participating Preferred Units" having the rights,
preferences, powers, privileges and restrictions, qualifications and limitations
substantially similar to those granted to or imposed upon the Series C Junior
Participating Preferred Stock, par value $.01 per share ("Series C Preferred
Stock") of Reckson Associates Realty Corp. (the "Company") as set forth in the
Articles Supplementary adopted the Company and filed with the Secretary of State
of the State of Maryland which shall be issued to the Company.
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Partnership Agreement.
WHEREAS, the Partnership and American Stock Transfer & Trust Company
("Rights Agent") have entered into a Rights Agreement dated as of January 3,
2000 ("Partnership Rights Agreement");
WHEREAS, concurrently with the entering into of Partnership Rights
Agreement the Partnership shall declare and make a distribution to the holders
of Class A Common Partnership Units of one Right for each Class A Common
Partnership Unit held; and
A-1
WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the
Partnership desires to designate the Series F Junior Participating Preferred
Units with substantially similar designation, preferences and other rights to
the Series C Preferred Stock;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Designation of Series F Junior Participating Preferred
Units.
Pursuant to Section 4.2 of the Partnership Agreement, the Partnership
hereby designates 100,000 additional partnership units which shall be the Series
F Junior Participating Preferred Units. The Series F Junior Participating
Preferred Units will have substantially the same designation, preferences and
other rights of the Series C Preferred Stock, as specified in this amendment and
in Exhibit I hereto.
Section 2. Amendment to Partnership Agreement.
Pursuant to Section 14.1.B(3) of the Partnership Agreement, the General
Partner, as general partner of the Partnership and as attorney-in-fact for its
Limited Partners, hereby amends the Partnership Agreement as follows:
(a) Article 1 of the Partnership Agreement is hereby amended by adding
the following definition of "Series F Preferred Units":
"Series F Preferred Units" means the units of limited partnership
interest designated by the Partnership as of October 13, 2000, in
connection with the designation of the Series C Preferred Stock by the
Company.
Section 3. Continuation of Partnership Agreement.
The Partnership Agreement and this Amendment shall be read together and
shall have the same force and effect as if the provisions of the Partnership
Agreement and this Amendment were contained in one document. Any provisions of
the Partnership Agreement not amended by this Amendment shall remain in full
force and effect as provided in the Partnership Agreement immediately prior to
the date hereof.
A-2
IN WITNESS WHEREOF, the parties hereto have executed this Supplement to
the Partnership Agreement as of the 13th day of October, 2000.
GENERAL PARTNER
RECKSON ASSOCIATES REALTY CORP.
By: ____________________________________
Name:
Title:
EXISTING LIMITED PARTNERS
By: Reckson Associates Realty Corp.,
as Attorney-in-Fact for the Limited
Partners
By: ____________________________________
Name:
Title:
SERIES F JUNIOR PARTICIPATING
PREFERRED UNIT HOLDER
RECKSON ASSOCIATES REALTY CORP.
By: ____________________________________
Name:
Title:
A-3
Exhibit I
RECKSON OPERATING PARTNERSHIP, L.P. DESIGNATION OF THE VOTING POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING AND OTHER SPECIAL RIGHTS
AND QUALIFICATIONS, LIMITATIONS, OR RESTRICTIONS OF THE SERIES F Junior
Participating PREFERRED PARTNERSHIP UNITS.
The following are the terms of the Series F Junior Participating Junior
Participating Preferred Partnership Units established pursuant to this
Amendment:
A-4
SERIES F JUNIOR PARTICIPATING PREFERRED PARTNERSHIP UNITS
1. Designation and Number.
A series of preferred units of the Partnership, designated the "Series
F Junior Participating Preferred Units" (the "Series F Preferred Units") is
hereby established. The number the Series F Preferred Units shall be 100,000.
Such number of units may be increased or decreased at the discretion of the
General Partner; provided, however, that no decrease shall reduce the number of
Series C Preferred Units to a number less than that of the Series F Preferred
Units then outstanding plus the number of Series C Preferred Units issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Partnership.
2. Distributions.
(a) The holders of Series F Preferred Units shall be entitled to
receive, when, as and if declared by the General Partner out of funds legally
available for the purpose, quarterly distributions payable in cash January 31,
April 30, July 31 and October 31 in each year (each such date being referred to
herein as a "Quarterly Distribution Payment Date"), commencing on the first
Quarterly Distribution Payment Date after the first issuance (the "First
Issuance") of a unit or fraction of a unit of Series F Preferred Units, in an
amount per unit (rounded to the nearest cent) equal to the greater of (i) $10.00
and (ii) 1,000 times the aggregate per unit amount of all cash distributions and
1,000 times the aggregate per unit amount (payable in kind) of all non-cash
distributions, other than a distribution payable in Class A Common Partnership
Units or by way of a subdivision of the outstanding Class A Common Partnership
Units, declared on the Class A Common Partnership Units, since the immediately
preceding Quarterly Distribution Payment Date, or, with respect to the first
Quarterly Distribution Payment Date, since the first issuance of any unit or
fraction of a unit of Series F Preferred Units. In the event the Partnership
shall at any time after the First Issuance declare or pay any distribution on
the Class A Common Partnership Units payable in Class A Common Partnership
Units, or effect a subdivision or combination or consolidation of the
outstanding Class A Common Partnership Units (by reclassification or otherwise
than by payment of a distribution of Class A Common Partnership Units) into a
greater or lesser number of Class A Common Partnership Units, then in each such
case the amount to which holders of Series F Preferred Units were entitled
immediately prior to such event under the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of Class A Common Partnership Units outstanding immediately after such event and
the denominator of which is the number of Class A Common Partnership Units that
were outstanding immediately prior to such event.
(b) On or after the First Issuance, no distribution on Class A
Common Partnership Units shall be declared unless concurrently therewith a
distribution is declared on the Series F Preferred Units as provided in
paragraph (a) above; and the
A-5
declaration of any such distribution on the Class A Common Partnership Units
shall be expressly conditioned upon payment or declaration of and provision for
a distribution on the Series F Preferred Units as above provided. In the event
no distribution shall have been declared on the Class A Common Partnership Units
during the period between any Quarterly Distribution Payment Date and the next
subsequent Quarterly Distribution Payment Date, a distribution of $10.00 per
unit on the Series F Preferred Units shall nevertheless be payable on such
subsequent Quarterly Distribution Payment Date.
(c) Whenever quarterly distributions or other distributions
payable on the Series F Preferred Units as provided in paragraph (a) above are
in arrears, thereafter and until all accrued and unpaid distributions, whether
or not declared, on Series F Preferred Units outstanding shall have been paid in
full, the Partnership shall not redeem or purchase or otherwise acquire for
consideration units of any ranking junior (either as to distribution or upon
liquidation, dissolution or winding up) to the Series F Preferred Units,
provided that the Partnership may at any time redeem, purchase or otherwise
acquire units of any such junior units in exchange for any units of the
Partnership ranking junior (as to distributions and upon dissolution,
liquidation or winding up) to the Series F Preferred Units.
(d) Distributions shall begin to accrue and be cumulative on
outstanding Series F Preferred Units from the Quarterly Distribution Payment
Date next preceding the date of issue of such Series F Preferred Units, unless
the date of issue of such units is prior to the record date for the first
Quarterly Distribution Payment Date, in which case distributions on such units
shall begin to accrue from the date of issue of such units, or unless the date
of issue is a Quarterly Distribution Payment Date or is a date after the record
date for the determination of holders of Series F Preferred Units entitled to
receive a quarterly distribution and before such Quarterly Distribution Payment
Date, in either of which events such distributions shall begin to accrue and be
cumulative from such Quarterly Distribution Payment Date. Accrued but unpaid
distributions shall not bear interest. The General Partner may fix a record date
for the determination of holders of Series F Preferred Units entitled to receive
payment of a distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
3. Dissolution, Liquidation and Winding Up.
In the event of any voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Partnership (hereinafter referred to as a
"Liquidation"), the holders of Series F Preferred Units shall be entitled to
receive the greater of (a) $10.00 per unit, plus an amount equal to accrued and
unpaid distributions thereon, whether or not declared, to the date of such
payment and (b) the aggregate amount per unit equal to 1,000 times the aggregate
amount to be distributed per unit to holders of Class A Common Partnership
Units. In the event the Partnership shall at any time after the First Issuance
declare or pay any distribution on the Class A Common Partnership Units payable
in Class A Common
A-6
Partnership Units, or effect a subdivision or combination or consolidation of
the outstanding Class A Common Partnership Units (by reclassification or
otherwise than by way of distribution in Class A Common Partnership Units) into
a greater or lesser number of Class A Common Partnership Units, then in each
such case the aggregate amount to which holders of Series F Preferred Units were
entitled immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of Class A Common Partnership Units outstanding immediately after such
event and the denominator of which is the number of Class A Common Partnership
Units that were outstanding immediately prior to such event.
4. Voting Rights.
The holders of Series F Preferred Units shall have the following voting
rights:
(a) Each Series F Preferred Unit shall entitle the holder thereof to
one thousand (1,000) votes on all matters submitted to a vote of the unitholders
of the Partnership. In the event the Partnership shall at any time after the
First Issuance declare or pay any distribution on the Class A Common Partnership
Units payable in Class A Common Partnership Units, or effect a subdivision or
combination or consolidation of the outstanding units of Class A Common
Partnership Units (by reclassification or otherwise than by payment of a
distribution in Class A Common Partnership Units) into a greater or lesser
number of units of Class A Common Partnership Units, then in each such case the
aggregate number of votes to which holders of Series F Preferred Units were
entitled immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such number by a fraction the numerator of which is the
number of Class A Common Partnership Units outstanding immediately after such
event and the denominator of which is the number of Class A Common Partnership
Units that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein, or by law or the
Partnership Agreement, the holders of Series F Preferred Units and the holders
of Class A Common Partnership Units shall vote together as one class on all
matters submitted to a vote of unitholders of the Partnership.
(c) Except as otherwise set forth herein or required by law or the
Partnership Agreement, holders of Series F Preferred Units shall have no special
voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Class A Common Partnership Units as set
forth herein) for the taking of any partnership action. No consent of the
holders of outstanding Series F Preferred Units at any time outstanding shall be
required in order to permit the General Partner to: (i) increase the number of
authorized Series F Preferred Units or to decrease such number to a number not
below the sum of the number of Series F Preferred Units then outstanding and the
number of units with respect to which there are outstanding rights to purchase;
or
A-7
(ii) issue preferred partnership units which are senior to the Series F
Preferred Units, junior to the Series F Preferred Units or on a parity with the
Series F Preferred Units.
5. Consolidation, Merger, etc.
In case the Partnership shall enter into any consolidation, merger,
combination or other transaction in which the Class A Common Partnership Units
are exchanged for or changed into other securities, cash and/or any other
property, then in any such case each Series F Preferred Unit shall at the same
time be similarly exchanged or changed into an amount per unit, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount of securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each Class A Common
Partnership Unit is changed or exchanged. In the event the Partnership shall at
any time after the First Issuance declare or pay any distribution on the Class A
Common Partnership Units payable in Class A Common Partnership Units, or effect
a subdivision or combination or consolidation of the outstanding Class A Common
Partnership Units (by reclassification or otherwise than by payment of a
distribution in Class A Common Partnership Unit) into a greater or lesser number
of Class A Common Partnership Units, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of Series F
Preferred Units shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Class A Common Partnership Units outstanding
immediately after such event and the denominator of which is the number of Class
A Common Partnership Units that were outstanding immediately prior to such
event.
6. Redemption.
The Series F Preferred Units shall not be redeemable.
7. Conversion Rights.
The Series F Preferred Units are not convertible into Class A Common
Partnership Units or any other security of the Partnership.
8. Ranking.
The Series F Preferred Units shall rank junior to all other classes and
series of the Partnership's Preferred Partnership Units as to payment of
distributions and the distribution of assets, unless the terms of any such
series shall provide otherwise.
A-8
Exhibit B
(Form of Right Certificate)
Certificate No. R-_______ _______ Rights
NOT EXERCISABLE AFTER OCTOBER 13, 2010, UNLESS EXTENDED PRIOR THERETO BY THE
GENERAL PARTNER OR EARLIER IF REDEEMED BY THE PARTNERSHIP. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE PARTNERSHIP, AT $0.01 PER RIGHT ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON
(AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID.
[THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY ARE NULL AND VOID.]*
Right Certificate
Reckson Operating Partnership, L.P.
This certifies that ________________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of October 13, 2000 (the "Rights Agreement"),
between Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), and American Stock Transfer & Trust Company (the "Rights
Agent"), to purchase from the Partnership at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.,
New York City, New York time, on October 13, 2010 (unless the Rights evidenced
hereby shall have been previously redeemed by the Partnership) at the office or
offices of the Rights Agent designated for such purpose, or at the office of its
successor as Rights Agent, one one-thousandth of a unit of Series F Preferred
Unit (the "Preferred Units"), of the Partnership, at a purchase price of $84.44
per one one-
--------
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
B-1
thousandth of Preferred Unit (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right Certificate (and the
number of one one-thousandths of a Preferred Unit which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set forth above, are
the number and Purchase Price as of October 13, 2000 based on the Preferred
Units as constituted at such date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Right
Certificate are Beneficially Owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee after the Acquiring Person becomes such, or
(iii) under certain circumstances specified in the Rights Agreement, a
transferee of any such Acquiring Person, Associate or Affiliate who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such,
such Rights shall become null and void and no holder hereof shall have any right
with respect to such Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number
of one one-thousandths of a Preferred Unit or other securities which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain events,
including Triggering Events (as such term is defined in the Rights Agreement).
This Right Certificate is subject to all of the terms, covenants and
restrictions of the Rights Agreement, which terms, covenants and restrictions
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 Partnership and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal executive offices of
the Partnership and the office or offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Units or other securities as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
B-2
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Partnership at a redemption price of
$0.01 per Right (subject to adjustment as provided in the Rights Agreement)
payable in cash.
No fractional Preferred Units will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are one
one-thousandth or integral multiples of one one-thousandth of a Preferred Unit,
which may, at the election of the Partnership, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive distributions or be deemed for any purpose the holder of the Preferred
Units or of any other securities of the Partnership 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 unitholder of the Partnership or any right to vote upon any
matter submitted to unitholders at any meeting thereof, or to give or withhold
consent to any partnership action, or to receive notice of meetings or other
actions affecting unitholders (except as provided in the Rights Agreement), or
to receive distributions or to exercise any preemptive or subscription rights,
or otherwise, until the Right or Rights evidenced by this Right Certificate
shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
B-3
WITNESS the facsimile signature of the proper officers of the
Partnership and its corporate seal.
[SEAL]
ATTEST: RECKSON OPERATING PARTNERSHIP,
L.P.
By: Reckson Associates Realty Corp., its
general partner
By:______________________________________
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Rights Agent
By:_____________________________
Authorized Officer
B-4
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED_________________ hereby sells, assigns and transfers
unto
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the within Right Certificate on the books of the within-named
Partnership, with full power of substitution.
Dated: ____________, ____
____________________________________________
Signature
Signature Guaranteed:
------------------------------------------------------
The undersigned hereby certifies that (1) the Rights evidenced by this
Right Certificate are not being sold, assigned or transferred by or on behalf of
a Person who is or was an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement) and (2) after due inquiry
and to the best knowledge of the undersigned, the undersigned did not acquire
the Rights evidenced by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement).
____________________________________________
Signature
B-5
Form of Reverse Side of Right Certificate -- continued
--------------------------------------------------------------------------------
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder
desires to exercise Rights
represented by the Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise _________________
Rights represented by this Right Certificate to purchase the Preferred Units,
Partnership Units or other securities issuable upon the exercise of such Rights
and requests that certificates for such Preferred Units, Partnership Units or
other securities be issued in the name of:
Please insert social security
or other identifying number ___________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number ________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
B-6
Form of Reverse Side of Right Certificate -- continued
--------------------------------------------------------------------------------
Dated: _______________, ____
-------------------------------
Signature
Signature Guaranteed:
B-7
Form of Reverse Side of Right Certificate -- continued.
--------------------------------------------------------------------------------
The undersigned hereby certifies that (1) the Rights evidenced by this
Right Certificate are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) and (2) after due inquiry and to the best
knowledge of the undersigned, the undersigned did not acquire the Rights
evidenced by this Rights Certificate from any Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement).
-------------------------------
Signature
--------------------------------------------------------------------------------
NOTICE
The signature on the foregoing Forms of Assignment and Election and
certificates must conform to the name as written upon the face of this Right
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 Partnership and the Rights Agent will deem the Beneficial Owner
of the Rights evidenced by this Right Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement) and such Assignment or Election to Purchase will not be honored.
B-8
