Exhibit 2
FIRST AMENDMENT TO THE
AMENDED AND RESTATED
RIGHTS AGREEMENT
This First Amendment ("First Amendment") to the Amended and Restated Rights
Agreement dated as of January 22, 2002 by and between Xxxxxxxx Properties Trust
(the "Company") and Equiserve Trust Company, N.A. (as "Rights Agent") (the
"Rights Agreement") is entered into and effective as of June 26, 2002.
Capitalized terms used herein but not defined herein shall have the meanings
given to such terms in the Rights Agreement.
RECITALS
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WHEREAS, pursuant to Section 27 of the Rights Agreement the Board of
Trustees of the Company (the "Board") may, and the Rights Agent shall, if the
Company so directs, amend the Rights Agreement prior to a Distribution Date
without the approval of any holders of Common Shares, subject to the penultimate
sentence thereof;
WHEREAS, the Board has authorized this First Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby amend the Rights Agreement as follows:
1. Section 1(a) is hereby amended and restated in its entirety as
follows:
"Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall at
any time be the Beneficial Owner of either or both of (i) 10% or more
of the Common Shares then outstanding or (ii) 10% or more of the
Rights then outstanding, but shall not include: (a) the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan; (b) Security Capital Preferred Growth Incorporated
("SCPG:"), including its Affiliates and Associates, provided that SCPG
and its Affiliates and Associates shall be an Acquiring Person if and
when SCPG and its Affiliates and Associates shall become the
Beneficial Owner of either or both of (i) 11% or more of the Common
Shares then outstanding or (ii) 11% or more of the Rights then
outstanding; (c) Xxxxx and Steers Capital Management Inc. ("Xxxxx and
Steers"), including its Affiliates and Associates, provided that Xxxxx
and Steers and its Affiliates and Associates shall be an Acquiring
Person if and when Xxxxx and Steers and its Affiliates and Associates
shall become the Beneficial Owner of either
or both of (i) 15% or more of the Common Shares then outstanding or
(ii) 15% or more of the Rights then outstanding; (d) any such Person
who has become and is such a Beneficial Owner solely because (1) of a
reduction in the aggregate number of Common Shares outstanding due to
a repurchase of Common Shares by the Company since the last date on
which such Person acquired Beneficial Ownership of any Common Shares
or (2) it acquired such Beneficial Ownership in the good faith belief
that such acquisition would not (A) cause such Beneficial Ownership to
equal or exceed 10% (or, in the case of SCPG and its Affiliates and
Associates 11%, or, in the case of Xxxxx and Steers and its Affiliates
and Associates, 15%) of the Common Shares then outstanding and such
Person relied in good faith in computing the percentage of its
Beneficial Ownership on publicly filed reports or documents of the
Company that are inaccurate or out-of-date or (B) otherwise cause a
Distribution Date or the adjustment provided for in Section 11(a) to
occur. Notwithstanding clause (d)(2) of the preceding sentence, if any
Person that is not an Acquiring Person due to such clause (d)(2) does
not reduce its percentage of Beneficial Ownership of Common Shares to
less than 10% (or, in the case of SCPG and its Affiliates and
Associates 11%, or, in the case of Xxxxx and Steers and its Affiliates
and Associates, 15%) by the Close of Business on the fifth Business
Day after notice from the Company (the date of notice being the first
day) that such Person's Beneficial Ownership of Common Shares so
equals or exceeds 10% (or, in the case of SCPG and its Affiliates and
Associates 11%, or, in the case of Xxxxx and Steers and its Affiliates
and Associates, 15%), such Person shall, at the end of such five
Business Day period, become an Acquiring Person (and such clause
(d)(2) shall no longer apply to such Person). For purposes of this
definition, the determination whether any Person acted in "good faith"
shall be conclusively determined by the Board of Trustees of the
Company.
2. The fourth paragraph of Exhibit B to the Rights Agreement is
hereby amended and restated in its entirety as follows.
The Rights will trade with the Common Shares and will be evidenced by
Common Shares certificates, and no separate certificates evidencing
the Rights (the "Rights Certificates") will be distributed initially.
The Rights will separate from the Common Shares and a distribution of
the Rights Certificates will occur (the "Distribution Date") upon the
earlier of (i) 10 business days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the outstanding Common Shares (or, in the
case of Security Capital Preferred Growth Incorporated ("SCPG") and
its affiliates 11%, or, in the case of Xxxxx and Steers Capital
Management Inc. and its affiliates ("Xxxxx and Steers"), 15% or more
of the outstanding Common Shares) (the "Share Acquisition Date"), or
(ii) 10 business days following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially becoming an Acquiring Person. Until the Distribution
Date, (i) the Rights will be evidenced by the Common Shares
certificates and will be transferred with and only with such Common
Shares certificates, (ii) any Common Shares certificates issued will
contain a notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for Common Shares
outstanding will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificates.
3. Governing Law. This First Amendment shall be deemed to be a
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contract made under the laws of the State of Maryland and for all
purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts to be made and performed
entirely within such State.
4. Counterparts. This First Amendment may be executed in any number
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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.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed, all as of the day and year first above written.
XXXXXXXX PROPERTIES TRUST
By: /s/ Xxxxxx X. August
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Xxxxxx X. August
President and Chief Executive Officer
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxxx Xxxxxx
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Authorized Signature
