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NEW PLAN REALTY TRUST
and
BANKBOSTON, N.A.
as Rights Agent
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Rights Agreement
Dated as of April 23, 1998
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NYFS05...:\40\65240\0003\2093\AGR3298V.56D
Table of Contents
Page
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Section 1. Certain Definitions...................................... 2
Section 2. Appointment of Rights Agent.............................. 12
Section 3. Issuance of Right Certificates........................... 12
Section 4. Form of Right Certificates............................... 15
Section 5. Countersignature and Registration........................ 16
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right
Certificates........................................... 18
Section 7. Exercise of Rights; Exercise Price;
Expiration Date of Rights.............................. 20
Section 8. Cancellation and Destruction of Right
Certificates........................................... 26
Section 9. Reservation and Availability of Shares of
Beneficial Interest.................................... 27
Section 10. Share Record Date....................................... 30
Section 11. Adjustment of Exercise Price or Number of
Shares or Rights...................................... 30
Section 12. Certification of Adjusted Exercise Price
or Number of Shares................................... 43
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power............................ 43
Section 14. Fractional Rights and Fractional Shares................. 52
Section 15. Rights of Action........................................ 53
Section 16. Agreement of Right Holders.............................. 54
Section 17. Right Certificate Holder Not Deemed a
Shareholder........................................... 55
i
Section 18. Concerning the Rights Agent............................. 56
Section 19. Merger or Consolidation of, or Change in
Name of, the Rights Agent............................. 57
Section 20. Duties of Rights Agent.................................. 58
Section 21. Change of Rights Agent.................................. 62
Section 22. Issuance of New Right Certificates...................... 65
Section 23. Redemption.............................................. 65
Section 24. Notice of Proposed Actions.............................. 67
Section 25. Notices................................................. 69
Section 26. Supplements and Amendments.............................. 70
Section 27. Exchange................................................ 71
Section 28. Successors.............................................. 74
Section 29. Benefits of this Rights Agreement....................... 74
Section 30. Massachusetts Contract.................................. 74
Section 31. Counterparts............................................ 75
Section 32. Descriptive Headings.................................... 75
Section 33. Severability............................................ 75
Section 34. Trust Provision......................................... 75
Exhibit A - Summary of Rights to Purchase Common Stock
Exhibit B - Form of Right Certificate
ii
RIGHTS AGREEMENT
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Agreement, dated as of April 23, 1998, by and between NEW PLAN
REALTY TRUST, a Massachusetts business trust (the "Company"), and BankBoston,
N.A. (the "Rights Agent").
W I T N E S S E T H :
WHEREAS, the Board of Trustees of the Company (the
"Board of Trustees") has authorized and declared a distribution of one right (a
"Right") for each Share of Beneficial Interest, without par value, of the
Company (the "Shares") outstanding as of the close of business on April 24, 1998
(the "Record Date"), each such Right representing the right to purchase one
Share (subject to adjustment) upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, the Board of Trustees has further authorized the issuance
of one Right (subject to adjustment) with respect to each Share that shall
become outstanding (whether originally issued or delivered from the Company's
treasury) between the Record Date and the earliest of the Distribution Date, the
Expiration Date and the Final Expiration Date (as such terms are hereinafter
defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
be the Beneficial Owner (as such term is hereinafter defined) of 15% or
more of the Voting Shares (as such term is hereinafter defined) of the
Company then outstanding; provided, however, that an Acquiring Person
shall not include (i) an Exempt Person (as such term is hereinafter
defined), or (ii) any Person who or which, together with all Affiliates
and Associates of such Person, would be an Acquiring Person solely by
reason of (A) being the Beneficial Owner of Voting Shares of the Company,
the Beneficial Ownership of which was acquired by such Person (together
with all Affiliates and Associates of such Person) pursuant to any action
or transaction or series of related actions or transactions approved by
the Board of Trustees
2
before such Person (together with all Affiliates and Associates of such
Person) otherwise became an Acquiring Person or (B) a reduction in the
number of issued and outstanding Voting Shares of the Company pursuant to
a transaction or a series of related transactions approved by the Board of
Trustees; provided, further, however, that in the event that such Person
described in the foregoing clause (ii) does not become an Acquiring Person
by reason of subclause (A) or (B) of said clause (ii), such Person shall
nonetheless become an Acquiring Person in the event such Person (together
with all Affiliates and Associates of such Person) thereafter acquires
Beneficial Ownership of an additional 1% of the Voting Shares of the
Company, unless the acquisition of such additional Voting Shares would not
result in such Person becoming an Acquiring Person by reason of subclause
(A) or (B) of said clause (ii). Notwithstanding the foregoing, if the
Board of Trustees determines in good faith that a Person who would
otherwise be an "Acquiring Person", as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently, and such
Person divests as promptly as practicable (as determined in good faith by
3
the Board of Trustees) a sufficient number of Voting Shares so that such
Person would no longer be an "Acquiring Person", as defined pursuant to
the foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be an "Acquiring Person" for purposes of this Agreement.
(b) "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended ("Exchange Act"), as in effect on the date of this
Rights Agreement.
(c) "Associate" of a Person shall mean (i) with respect to a
corporation, any officer or director thereof or of any Subsidiary (as such
term is hereinafter defined) thereof, or any Beneficial Owner of 10% or
more of any class of equity security thereof, (ii) with respect to an
association, any officer or director thereof or of a Subsidiary thereof,
(iii) with respect to a partnership, any general partner thereof or any
limited partner thereof who is, directly or indirectly, the Beneficial
Owner of a 10% ownership interest therein, (iv) with respect to a business
trust, any officer or trustee thereof or of any Subsidiary thereof, (v)
with respect to any other trust
4
or an estate, any trustee, executor or similar fiduciary or any Person who
has a 20% or greater interest as a beneficiary in the income from or
principal of such trust or estate, (vi) with respect to a natural person,
any relative or spouse of such person, or any relative of such spouse, who
has the same home as such person, and (vii) any Affiliate of such Person.
(d) A person shall be deemed the "Beneficial Owner" of, or to
"Beneficially Own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes
of Section 13(d) of the Exchange Act and Regulation 13D-G thereunder
(or any comparable or successor law or regulation), in each case as
in effect on the date hereof; or
(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 or the
fulfillment of a condition or both) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, other rights (other than these Rights),
5
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 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, alone or in concert with others, pursuant
to any agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own", any securities if
the agreement, arrangement or understanding to vote such security
(1) arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations under the
Exchange Act and (2) is not at the time reportable by such Person on
a Schedule 13D report under the Exchange Act (or any comparable or
successor report), other than by reference to a proxy or consent
solicitation being conducted by such Person; or
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(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except as described in the proviso to
subclause (B) of clause (ii) of this paragraph (d)) or disposing of
any securities of the Company; provided, however, that for purposes
of determining Beneficial Ownership of securities under this Rights
Agreement, officers and directors of the Company solely by reason of
their status as such shall not constitute a group (notwithstanding
that they may be Associates of one another or may be deemed to
constitute a group for purposes of the Exchange Act) and shall not
be deemed to own shares owned by another officer or director of the
Company. Notwithstanding anything in this paragraph (d) to
the contrary, a Person engaged in the business of underwriting
securities shall not be deemed the "Beneficial Owner" of, or to
"Beneficially Own," any securities acquired in good faith in a
firm commitment
7
underwriting until the expiration of forty days after
the date of such acquisition.
(e) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the Commonwealth of
Massachusetts are authorized or obligated by law or executive order to
close.
(f) "Close of Business" on any given date shall mean 5:00 P.M.,
Canton, Massachusetts time, on such date; provided, however, that if such
date is not a Business Day, it shall mean 5:00 P.M., Canton, Massachusetts
time on the next succeeding Business Day.
(g) "Distribution Date" shall have the meaning set forth in Section
3(b) hereof.
(h) "Exchange Act" shall have the meaning set forth in Section 1(b)
hereof.
(i) "Exempt Person" shall mean the Company, any Subsidiary of the
Company, any employee benefit plan or employee stock plan of the Company
or of any Subsidiary of the Company, or any trust or other entity
organized, appointed, established or holding Shares for or pursuant to the
terms of any such plan.
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(j) "Exercise Price" shall have the meaning set forth in Sections 4
hereof.
(k) "Expiration Date" shall have the meaning set forth in Section
7(a)(i) hereof.
(l) "Fair Market Value" of any property shall mean the fair market
value of such property as determined in accordance with Section 11(d)
hereof.
(m) "Final Expiration Date" shall have the meaning set forth in
Section 7(a)(i) hereof.
(n) "Person" shall mean any individual, firm, corporation or other
entity.
(o) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(p) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(q) "Right Certificate" shall have the meaning set forth in Section
3(d) hereof.
(r) "Share Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such or such earlier date as a majority of the Board of
Trustees shall become aware of the existence of an Acquiring Person.
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(s) "Shares" when used with reference to the Company shall mean the
Shares of Beneficial Interest, without par value, of the Company. "Shares"
when used with reference to any Person other than the Company which shall
be organized in corporate form shall mean the capital stock or other
equity security with the greatest per share voting power of such Person.
"Shares" when used with reference to any Person other than the Company
which shall not be organized in corporate form shall mean units of
beneficial interest which shall represent the right to participate in
profits, losses, deductions and credits of such Person and which shall be
entitled to exercise the greatest voting power per unit of such Person.
(t) "Subsidiary" of a Person shall mean any corporation or other
entity of which securities or other ownership interests having voting
power sufficient to elect a majority of the board of directors or other
persons performing similar functions are beneficially owned, directly or
indirectly, by such Person or by any corporation or other entity that is
otherwise controlled by such Person.
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(u) "Summary of Rights" shall have the meaning set forth in Section
3(a) hereof.
(v) "Trading Day" shall have the meaning set forth in Section 11(b)
hereof.
(w) "Transfer Tax" shall mean any tax or charge, including any
documentary stamp tax, imposed or collected by any governmental or
regulatory authority in respect of any transfer of any security,
instrument or right, including the Rights or the Shares.
(x) "Voting Shares" shall mean (i) the Shares of the Company and
(ii) any other shares of the Company entitled to vote generally in the
election of trustees or entitled to vote together with the Shares in
respect of any merger, consolidation, sale of all or substantially all of
the Company's assets, liquidation, dissolution or winding up.
Any determination required to be made by the Board of Trustees for purposes of
applying the definitions contained in this Section 1 shall be made by a majority
of the Board of Trustees in its good faith judgment, which determination shall
be binding on the Rights Agent and the holders of the Rights.
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Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
in accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company 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 in no event be liable for, the acts or omissions of any such
Co-Rights Agent.
Section 3. Issuance of Right Certificates.
(a) On the Record Date (or as soon as practicable
thereafter), the Company or the Rights Agent shall send a copy of a Summary of
Rights, in substantially the form attached hereto as Exhibit A (the "Summary of
Rights"), by first class mail, postage prepaid, to each record holder of the
Shares as of the close of business on the Record Date, at the address of such
holder shown on the records of the Company.
(b) Until the close of business on the day which is the earlier of
(i) the tenth day after the Share Acquisition Date or (ii) the tenth business
day (or such later date as may be determined by action of the Board of Trustees
prior to such time as any Person becomes an
12
Acquiring Person) after the date of the commencement by any Person (other than
an Exempt Person) of, or the first public announcement of the intent of any
Person (other than an Exempt Person) to commence, a tender or exchange offer
upon the successful consummation of which such Person would be an Acquiring
Person (irrespective of whether any Shares are actually purchased pursuant to
any such offer) (the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights shall be evidenced by the certificates for
Shares registered in the name of the holders of the Shares (together with, in
the case of certificates for Shares outstanding as of the Record Date, the
Summary of Rights) and not by separate Right Certificates and the record holders
of such certificates for Shares shall be the record holders of the Rights
represented thereby and (y) each Right shall be transferable only simultaneously
and together with the transfer of a Share (subject to adjustment as hereinafter
provided). Until the Distribution Date (or, if earlier, the Expiration Date or
Final Expiration Date), the surrender for transfer of any certificate for Shares
shall constitute the surrender for transfer of the Right or Rights associated
with the Shares evidenced thereby, whether or not accompanied by a copy of the
Summary of Rights.
13
(c) Rights shall be issued in respect of all Shares that become
outstanding after the Record Date but prior to the earlier of the Distribution
Date, the Expiration Date or the Final Expiration Date. Certificates issued for
Shares (including, without limitation, certificates issued upon original
issuance, disposition from the Company's treasury or transfer or exchange of
Shares) after the Record Date but prior to the earlier of the Distribution Date,
the Expiration Date or the Final Expiration Date shall have impressed on,
printed on, written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to
the same number of Rights (subject to adjustment) as the number of
Shares of Beneficial Interest represented by this certificate, such
Rights being on the terms provided under the Rights Agreement
between New Plan Realty Trust and BankBoston, N.A. (the "Rights
Agent"), dated as of April 23, 1998, as it may be amended from time
to time (the "Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at
the principal executive offices of New Plan Realty Trust. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights shall be evidenced by separate certificates and shall no
longer be evidenced by this certificate. New Plan Realty Trust shall
mail to the registered holder of this certificate a copy of the
Rights Agreement without charge within five days after receipt of a
written request therefor. Rights issued to or Beneficially Owned by
14
Acquiring Persons or their Affiliates or Associates (as such terms
are defined in the Rights Agreement) or any subsequent holder of
such Rights shall be null and void and may not be exercised by or
transferred to any Person.
(d) As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the Company
will send or cause to be sent (and the Rights Agent will, if requested, send),
by first class mail, postage prepaid, to each record holder of the Shares as of
the close of business on the Distribution Date, as shown by the records of the
Company, at the address of such holder shown on such records, a certificate in
the form provided by Section 4 hereof (a "Right Certificate"), evidencing one
Right (subject to adjustment as provided herein) for each Share so held. As of
and after the Distribution Date, the Rights shall be evidenced solely by Right
Certificates and may be transferred only by the transfer of the Right
Certificates as permitted hereby, separately and apart from any transfer of
Shares.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase shares, certificate and assignment to be
printed on the reverse thereof), when, as and if issued, shall be substantially
in the form set forth in Exhibit B hereto and may have such marks of
identification or designation and such legends,
15
summaries or endorsements printed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Shares or the Rights may from time
to time be listed or as the Company may deem appropriate to conform to usage or
otherwise and as are not inconsistent with the provisions of this Rights
Agreement. Right Certificates evidencing Rights whenever issued, (i) shall be
dated as of the date of issuance of the Rights they represent and (ii) subject
to adjustment from time to time as provided herein, on their face shall entitle
the holders thereof to purchase such number of Shares as shall be set forth
thereon at the price per Share payable upon exercise of a Right provided by
Section 7(b) hereof, as the same may from time to time be adjusted as provided
herein (the "Exercise Price").
Section 5. Countersignature and Registration.
(a) Each Right Certificate shall be executed on behalf of the
Company by its Chairman, Chief Executive Officer, President or any Vice
President, either manually or by facsimile signature, and have affixed thereto
the Com- pany's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. Each Right
16
Certificate shall be countersigned by the Rights Agent either manually or by
facsimile signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any
Right Certificate shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery of the
certificate by the Company, such Right Certificate, nevertheless, may be
countersigned by the Rights Agent and issued and delivered with the same force
and effect as though the person who signed such Right Certificates had not
ceased to be such officer of the Company. Any Right Certificate may be signed on
behalf of the Company by any person who, on the date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement any
such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or one or more offices designated as
the appropriate place for surrender of Rights Certificates upon exercise or
transfer, and in such other locations as may be required by law, books for
registration and transfer of the Right Certificates issued hereunder. Such books
shall show the
17
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(e), 7(f) and 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 Expiration Date or the
Final Expiration Date, any Right Certificate may be (i) transferred or (ii)
split up, combined or exchanged for one or more other Right Certificates,
entitling the registered holder to purchase a like number of Shares (or fraction
of a Share) as the Right Certificate or Rights Certificates surrendered then
entitled such holder to purchase. Any registered holder desiring to transfer any
Right Certificate shall surrender the Right Certificate at the principal office
of the Rights Agent with the form of certificate and assignment on the reverse
side thereof duly endorsed (or enclose with such Right Certificate a written
instrument of transfer in form satisfactory to the Company and the Rights
Agent), duly executed by the registered holder thereof or
18
his attorney duly authorized in writing, and with such signature duly
guaranteed. Any registered holder desiring to split up, combine or exchange any
Right Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate to be split up, combined or
exchanged at the principal office of the Rights Agent. Thereupon, the Rights
Agent shall countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any Transfer Tax that
may be imposed in connection with any transfer, split up, combination or
exchange of any Right Certificates.
(b) Subject to the provisions of Sections 7(e), 7(f) and 14 hereof,
upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and, if requested by the Company,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, or upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Rights Agent shall issue and deliver a
new Right Certificate of like
19
tenor to the registered owner in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price; Expiration Date of
Rights.
(a)(i) The Rights shall not be exercisable until, and shall become
exercisable on, the Distribution Date (unless otherwise provided herein,
including, without limitation, the restrictions on exercisability set forth in
Sections 7(a)(ii), 7(e), 23(a) and 27(b) hereof). Except as otherwise provided
herein, the Rights may be exercised, in whole or in part, at any time commencing
with the Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase and certificate on the reverse side thereof duly
executed (with signatures duly guaranteed), to the Rights Agent at the principal
office of the Rights Agent in Canton, Massachusetts, together with payment of
the Exercise Price with respect to each Right exercised, subject to adjustment
as hereinafter provided, at or prior to the close of business on the earlier of
(i) April 11, 2008 (the "Final Expiration Date") or (ii) the date on which the
Rights are redeemed as provided in Section 23 hereof or the date on which the
Rights are exchanged as provided in Section 27 hereof (the "Expiration Date").
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(ii) Notwithstanding any provision of this Rights Agreement to the
contrary, no Right shall be exercisable by the holder thereof for a number of
Shares in excess of the maximum number of Shares that could be acquired by the
holder of such Right without violating any provision of Article VIII of the
Amended and Restated Declaration of Trust of the Company, dated as of January
15, 1996 (or any successor provision or document), relating to limitations on
the ownership of Shares. Any holder who exercises a Right for a number of Shares
that violates the preceding sentence shall be deemed never to have had an
interest in the excess Shares purportedly purchased upon such exercise. The
Board of Trustees shall have the power to take such actions as they deem
necessary or appropriate to administer the provisions of this Section 7(a)(ii)
in a fair and equitable manner.
(b) The Exercise Price shall initially be $90.00 for each Share
purchasable pursuant to the exercise of a Right. The Exercise Price and the
number of Shares (or fraction of a Share) or other securities to be acquired
upon exercise of a Right shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof. The Exercise Price shall be payable in
lawful money of the
21
United States of America, in accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon receipt of a Right
Certificate representing exercisable Rights with the form of election to
purchase and certificate duly executed, accompanied by payment of the aggregate
Exercise Price for the Shares to be purchased and an amount equal to any
applicable Transfer Tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check, cashier's
check, bank draft or money order payable to the Company or the Rights Agent, the
Rights Agent shall thereupon promptly (i) requisition from any transfer agent of
the Shares one or more certificates representing the number of Shares to be so
purchased, and the Company hereby authorizes and directs such transfer agent to
comply with all such requests, (ii) as provided in Section 14(b), at the
election of the Company, cause depositary receipts to be issued in lieu of
fractional Shares, (iii) if the election provided for in the immediately
preceding clause (ii) has not been made, requisition from the Company the amount
of cash to be paid in lieu of the issuance of fractional Shares in accordance
with Section 14(b) hereof, (iv) after receipt of such Share certificates and/or
depositary receipts, cause the same to
22
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 (v) when appropriate, after receipt, promptly deliver such cash to
or upon the order of the registered holder of such Right Certificate; provided,
however, that in the case of a purchase of securities, other than the Shares,
pursuant to Section 13 hereof, the Rights Agent shall promptly take the
appropriate actions corresponding in such case to that referred to in the
foregoing clauses (i) through (v) of this Section 7(c). Notwithstanding the
foregoing provisions of this Section 7(c), the Company may suspend the issuance
of Shares or other securities upon exercise of a Right for a reasonable period,
not in excess of 90 days, during which the Company seeks to register under the
Securities Act of 1933, as amended (the "Act"), and any applicable securities
law of any other jurisdiction, the Shares or such other securities to be issued
pursuant to the Rights; provided, however, that nothing contained in this
Section 7(c) shall relieve the Company of its obligations under Section 9(c)
hereof.
(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
23
equivalent to the exercisable Rights remaining unexercised shall be issued by
the Rights Agent to the registered holder of such Right Certificate or his
assign, subject to the provisions of Sections 7(a)(i) and 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the
contrary, from and after the time (the "invalidation time") when any Person
first becomes an Acquiring Person, any Rights that are Beneficially Owned by (x)
such Acquiring Person (or any Associate or Affiliate of such Acquiring Person),
(y) a transferee of such Acquiring Person (or any such Associate or Affiliate)
who becomes a transferee after the invalidation time or (z) a transferee of such
Acquiring Person (or any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the invalidation time pursuant to either (I) a
transfer from the Acquiring Person (or any such Associate or Affiliate) to
holders of its equity securities or to any Person with whom it has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (II) a transfer which the Board of Trustees has determined is part of
a plan, arrangement or understanding which has the purpose or effect of avoiding
the provisions of this Section 7(e), and subsequent transferees of such Persons,
shall be null and void without any further action
24
and any holder of such Rights shall thereafter have no rights whatsoever with
respect to such Rights under any provision of this Rights Agreement or
otherwise. The Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) are complied with, but shall have no liability
to any holder of Right Certificates or any other Person as a result of its
failure to make any determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. No Right Certificate shall be
issued pursuant to Section 3 hereof that represents Rights beneficially owned by
an Acquiring Person or any Associate or Affiliate thereof whose Rights would be
null and void pursuant to the provisions of this Section 7(e); no Right
Certificate shall be issued at any time upon the transfer of any Rights to an
Acquiring Person whose Rights would be null and void pursuant to the provisions
of this Section 7(e) or any Associate or Affiliate thereof or to any nominee of
such Acquiring Person, Associate or Affiliate; and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring Person (or an
Associate or Affiliate of such Acquiring Person) whose Rights would be null and
void pursuant to the provisions of this Section 7(e) shall be canceled.
25
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company 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) completed and signed the certificate following 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 Company 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 Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall cancel
and retire, any Right Certificate purchased or acquired by the Company
26
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Beneficial
Interest.
(a) The Company covenants and agrees that it will keep available out
of its authorized and unissued Shares of Beneficial Interest a number of Shares
as will be sufficient to permit the exercise in full of all outstanding Rights
in accordance with Section 7. The Company shall not be required to keep
available Shares or other securities sufficient to permit the exercise in full
of all outstanding Rights pursuant to the adjustments set forth in Section
11(a)(ii) or Section 13 hereof unless the Rights become exercisable pursuant to
such adjustments, and then only to the extent the Rights become exercisable
pursuant to such adjustments.
(b) As long as the Shares (or any other securities) issuable and
deliverable upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use reasonable efforts to cause,
27
from and after such time as the Rights become exercisable, the Rights and all
Shares reserved for such issuance to be listed on such exchange upon official
notice of issuance.
(c) The Company shall use reasonable efforts to (i) file, as soon as
practicable following the occurrence of the event described in Section
11(a)(ii), or as soon as is required by law following the Distribution Date, as
the case may be, a registration statement under the Act with respect to the
securities purchasable upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (b) the earlier of the Expiration Date and
the Final Expiration Date. The Company may temporarily suspend, for a period of
time not to exceed ninety days, the exercisability of the Rights in order to
prepare and file a registration statement under the Act and permit it to become
effective. The Company will also take such action as may be appropriate under,
or to ensure compliance with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the Rights.
28
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite qualification
in such jurisdiction shall have been obtained and until a registration statement
under the Act (if required) shall have been declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to insure that all Shares (or other securities, as
the case may be) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of the Exercise
Price in respect thereof), be duly and validly authorized and issued and fully
paid and nonassessable shares.
(e) The Company shall not be required to pay any Transfer Tax which
may be payable in respect of any transfer or delivery of a Right Certificate to
any Person or the issuance or delivery of certificates for Shares (or other
securities, as the case may be) upon exercise of Rights in the name of any
Person, and the Company shall not be required to issue or deliver a Right
Certificate or certificate for Shares (or other securities, as the case may be)
to a Person until any such Transfer Tax shall have been paid (any such Transfer
Tax being payable by the holder of
29
such Right Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such Transfer Tax is due.
Section 10. Share Record Date. Each Person in whose name any
certificate for Shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the Shares represented
thereby on, and such certificate shall be dated as of, the date upon which the
Right Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price (and any applicable Transfer Taxes) was made; provided, however,
that, if the date of such surrender and payment is a date upon which the Share
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such Shares on, and such certificate shall be dated
as of, the next succeeding Business Day on which the Share transfer books of the
Company are open.
Section 11. Adjustment of Exercise Price or Number of Shares or
Rights. The Exercise Price, the number and kind of Shares (or fraction of a
share) which may be purchased upon exercise of a Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
30
(a) (i) In the event the Company shall at any time after the Record
Date (A) declare or pay any dividend on Shares payable in Shares,
(B) subdivide or split the outstanding Shares into a greater number
of Shares, (C) combine or consolidate the outstanding Shares into a
smaller number of Shares or effect a reverse split of the
outstanding Shares or (D) issue any Shares in a reclassification of
the Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), the Exercise Price in effect at the time of
the record date for such event (if one shall have been established
or, if not, in effect on the effective date of such event), and the
number and kind of Shares (or fraction of a Share) or other capital
stock, as the case may be, issuable upon exercise of a Right on such
date, shall be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to receive, upon
payment of the Exercise Price then in effect, the aggregate number
and kind of Shares or other shares, as the case may be, that, if
such Right had been
31
exercised immediately prior to such date and at a time when the
Share transfer books of the Company were open, the holder would have
owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, reclassification or other
event. If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(ii) Subject to Section 27 of this Agreement, in the event
that any Person shall become an Acquiring Person, then, subject to
the last sentence of Section 23(a) and except as otherwise provided
in this Section 11, each holder of a Right, except as provided in
Section 7(e) hereof and subject to the provisions of Section
7(a)(ii), shall thereafter have the right to receive upon exercise
of a Right in accordance with the terms of this Rights Agreement and
payment of the Exercise Price with respect to the total number of
Shares (or fraction of a Share) for
32
which a Right was exercisable immediately prior to the occurrence of
the event described in this Section 11(a)(ii), such number of Shares
(or fraction of a Share) as shall equal the result obtained by (x)
multiplying the then current Exercise Price by the number of Shares
(or fraction of a Share) for which a Right was exercisable
immediately prior to the first occurrence of the event described in
this Section 11(a)(ii) and (y) dividing that product by 50% of the
then current per share Fair Market Value of the Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of
such event.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Shares or securities convertible into Shares at a price per Share
(or having a conversion price per share, if a security convertible into Shares)
less than the then current per share Fair Market Value of the Shares on such
record date, the Exercise Price to be in effect after such record date shall be
determined by multiplying the
33
Exercise Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Shares outstanding on such record
date plus the number of Shares which the aggregate offering price of the total
number of Shares so to be offered (and/or the aggregate initial conversion price
of the convertible securities so to be offered) would purchase at such current
Fair Market Value and the denominator of which shall be the number of Shares
outstanding on such record date plus the number of additional Shares 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 as determined in good faith by
the Board of Trustees, whose determination shall be described in a statement
filed with the Rights Agent. Shares owned by or held for the account of the
Company 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
Exercise Price shall be adjusted to be the Exercise Price
34
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Shares (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness, cash (other
than a regular quarterly cash dividend not in excess of 150% of the previous
regular quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Shares) or subscription
rights or warrants (excluding those referred to in Section 11(b) hereof), the
Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the Fair Market Value of the
Shares on such record date, less the fair market value (as determined in good
faith by the Board of Trustees, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the assets or evidences
of indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Share and the denominator of which shall be such current Fair
Market Value
35
of the Shares. Such adjustment shall be made successively whenever such a record
date is fixed and in the event that such distribution is not so made, the
Exercise Price shall again be adjusted to be the Exercise Price which would then
be in effect if such record date had not been fixed.
(d) For the purpose of this Rights Agreement, the "Fair Market
Value" of any Share or any other stock or any Right or other security or any
other property on any date shall be determined as provided in this Section
11(d). In the case of a publicly-traded stock or other security, the Fair Market
Value on any date shall be deemed to be the average of the daily closing prices
per share of such stock or per unit of such other security for the 30
consecutive Trading Days (as such term is hereinafter defined) immediately prior
to such date; provided, however, that in the event that the Fair Market Value
per Share is determined during a period which includes any date that is within
30 Trading Days after (i) the ex-dividend date for a dividend or distribution on
such stock payable in Shares or securities convertible into Shares, or (ii) the
effective date of any subdivision, split, combination, consolidation, reverse
stock split or reclassification of such stock, then, and in each such case, the
Fair Market Value shall be appropriately adjusted by the Board of Trustees to
take into
36
account ex-dividend or post-effective date trading. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way
(in either case, as reported in the applicable transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange), or, if the securities are not listed or admitted to trading on the
New York Stock Exchange, as reported in the applicable transaction reporting
system with respect to securities listed on the principal national securities
exchange on which such security is listed or admitted to trading; or, if not
listed or admitted to trading on any national securities exchange, the last
quoted price (or, if not so quoted, the average of the high bid and low asked
prices) in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such other
system then in use; or, if no bids for such security are 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 such security selected by the Board
of Trustees. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which such security is
37
listed or admitted to trading is open for the transaction of business or, if
such security is not listed or admitted to trading on any national securities
exchange, a Business Day. If a security is not publicly held or not so listed or
traded, "Fair Market Value" shall mean the fair value per share of stock or per
other unit of such other security, as determined by an independent investment
banking firm experienced in the valuation of securities selected in good faith
by the Board of Trustees, or, if no such investment banking firm is, in the good
faith judgment of the Board of Trustees, available to make such determination,
in good faith by the Board of Trustees. In the case of property other than
securities, the "Fair Market Value" thereof shall be determined in good faith by
the Board of Trustees based upon such appraisals or valuation reports of such
independent experts as the Board of Trustees shall in good faith determine to be
appropriate in accordance with good business practices and the interests of the
holders of Rights. Any such determination of Fair Market Value shall be
described in a statement filed with the Rights Agent and shall be binding upon
the Rights Agent.
(e) Unless the Company shall have exercised its election as provided
in Section 11(f), upon each adjustment of the Exercise Price as a result of the
calculations made
38
in Section 11(a), (b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at
the adjusted Exercise Price, that number of Shares (or fraction of a Share)
obtained by (i) multiplying (x) the number of Shares (or fraction of a Share)
covered by a Right immediately prior to the adjustment pursuant to this Section
11(e) by (y) the Exercise Price in effect immediately prior to such adjustment
of the Exercise Price and (ii) dividing the product so obtained by the Exercise
Price in effect immediately after such adjustment of the Exercise Price.
(f) The Company may elect on or after the date of any adjustment of
the Exercise Price pursuant to Section 11(a), (b) and (c) to adjust the number
of Rights in substitution for any adjustment pursuant to Section 11(e) in the
number of Shares (or fraction of a Share) purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of Shares (or fraction of a Share)
for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights obtained by dividing the Exercise Price in effect
immediately prior to adjustment of the Exercise Price
39
by the Exercise Price in effect immediately after adjustment of the Exercise
Price. The Company 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. This record date may
be the date on which the Exercise Price is adjusted or any day thereafter, but,
if the Right Certificates have been issued, shall be at least 10 days later than
the date of the public announcement. If the Right Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this Section 11(f), the
Company 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, if any, to which such
holders shall be entitled as a result of such adjustment, or, at the option of
the Company, 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
Company, 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
40
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.
(g) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Exercise Price; provided, however, that any adjustments which by reason of this
Section 11(g) 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-hundredth of a Share,
as the case may be.
(h) Irrespective of any adjustment or change in the Exercise Price
or the number of Shares (or fraction of a Share) issuable upon the exercise of a
Right, the Right Certificates theretofore and thereafter issued may continue to
express the Exercise Price and the number of Shares (or fraction of a Share) to
be issued upon exercise of a Right as in the initial Right Certificates issued
hereunder but, nevertheless, shall represent the Rights as so adjusted.
(i) Before taking any action that would cause an adjustment reducing
the price to be paid per whole Share upon exercise of the Rights below the then
par value, if any, of the Shares, the Company shall use reasonable efforts
41
to take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable Shares at such adjusted price per Share.
(j) Anything in this Section 11 to the contrary notwithstanding, in
the event of any recapitalization, reorganization or partial liquidation of the
Company or similar transaction, the Company shall be entitled to make such
further adjustments in the number of Shares (or fraction of a Share) which may
be acquired upon exercise of the Rights, and such adjustments in the Exercise
Price therefor, in addition to those adjustments expressly required by the other
paragraphs of this Section 11, as the Board of Trustees shall determine to be
necessary or appropriate in order for the holders of the Rights in such event to
be treated equitably and in accordance with the purpose and intent of this
Rights Agreement or in order that any such event shall not, but for such
adjustment, in the opinion of counsel to the Company, result in the shareholders
of the Company being subject to any United States federal income tax liability
by reason thereof.
Section 12. Certification of Adjusted Exercise
42
Price or Number of Shares. Whenever an adjustment is made as provided in
Sections 11, 13, 23 or 27, the Company shall (a) promptly prepare a certificate
setting forth such adjustment, and a brief statement of the facts giving rise to
such adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 25.
Notwithstanding the foregoing sentence, the failure of the Company to make such
certification or give such notice shall not affect the validity of or the force
or effect of the requirement for such adjustment. Any adjustment to be made
pursuant to Sections 11, 13, 23 or 27 of this Rights Agreement shall be
effective as of the date of the event giving rise to such adjustment. The Rights
Agent shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, at any time after the time that any Person
becomes an Acquiring Person, (x) the Company shall, directly or indirectly,
consolidate with any
43
other Person or Persons, or merge with and into any other Person or Persons and
the Company shall not be the surviving or continuing corporation of such merger,
or (y) any Person or Persons shall, directly or indirectly, merge with and into,
the Company, and the Company shall be the continuing or surviving corporation of
such merger and, in connection with such merger, all or part of the outstanding
Shares of the Company shall be changed into or exchanged for stock or other
securities of any other Person or of the Company or cash or any other property,
or (z) the Company or one or more of its Subsidiaries shall, directly or
indirectly, sell or otherwise transfer to any other Person or any Affiliate or
Associate of such Person, in one or more transactions, or the Company or one or
more of its Subsidiaries shall sell or otherwise transfer to any Person or any
Affiliaate or Associate of such Person in one or a series of related
transactions, assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) (any event
described in clause (x), (y) or (z) of this Section 13(a) being referred to as a
"Section 13 Event"), then, on the first occurrence of any such event, proper
provision shall be made so that (i) each holder of record of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right to
44
receive, upon the exercise thereof and payment of the Exercise Price with
respect to the total number of Shares (or fraction of a Share) for which a Right
was exercisable immediately prior to the first occurrence of the event described
in Section 11(a)(ii) in accordance with the terms of this Rights Agreement, such
number of validly issued, fully paid and nonassessable and freely tradeable
Shares of the Principal Party (as defined herein) not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as shall be equal
to the result obtained by (1) multiplying the Exercise Price in effect
immediately prior to the first occurrence of the event described in Section
11(a)(ii) by the number of Shares (or fraction of a Share) for which a Right was
exercisable immediately prior to such first occurrence of the event described in
Section 11(a)(ii) and (2) dividing that product by 50% of the Fair Market Value
(determined as provided in Section 11(d) hereof) per Share of such Principal
Party on the date of consummation of such Section 13 Event; provided that the
Exercise Price and the number of Shares of such Principal Party issuable upon
exercise of each Right shall be further adjusted as provided in this Rights
Agreement to reflect any events occurring after the date of the first occurrence
of a Section 13 Event; (ii) such Principal Party shall thereafter
45
be liable for, and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Rights Agreement; (iii)
the term "Company" for all purposes of this Rights Agreement shall thereafter be
deemed to refer to such Principal Party; (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of its 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 its
Shares thereafter deliverable upon the exercise of the Rights; provided,
however, that, upon the subsequent occurrence of any merger, consolidation, sale
of all or substantially all of the assets, recapitalization, reclassification of
Shares, reorganization or other extra-ordinary transaction in respect of such
Principal Party, each holder of a Right shall thereupon be entitled to receive,
upon exercise of a Right and payment of the Exercise Price, such cash, Shares,
rights, warrants and other property which such holder would have been entitled
to receive had it, at the time of such transaction, owned the Shares of the
Principal Party purchasable upon the exercise of a Right, and such Principal
Party shall take such steps (including, but not limited to, reservation of
Shares of
46
stock) as may be necessary to permit the subsequent exercise of the Rights in
accordance with the terms hereof for such cash, Shares, rights, warrants and
other property and (v) the provisions of Section 11(a)(ii) hereof shall be of no
effect following the occurrence of any Section 13 Event.
(b) "Principal Party" shall mean (i) in the case of any transaction
described in (x) or (y) of the first sentence of Section 13(a) hereof: (A) the
Person that is the issuer of the securities into which Shares of the Company are
converted in such merger or consolidation, or, if there is more than one such
issuer, the issuer the Shares of which have the greatest market value or (B) if
no securities are so issued, (x) the Person that is the other party to the
merger or consolidation and that survives such merger or consolidation, or, if
there is more than one such Person, the Person the Shares of which have the
greatest market value or (y) if the Person that is the other party to the merger
or consolidation does not survive the merger or consolidation, the Person that
does survive the merger or consolidation (including the Company if it survives);
and
(ii) in the case of any transaction described in (z) of the
first sentence in Section 13(a), the Person that is the party receiving the
greatest portion of
47
the assets or earning power transferred pursuant to such transaction or
transactions, or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such Persons which is the
issuer of Shares having the greatest market value of Shares outstanding;
provided, however, that in any such case described in Section 13(b)(i) or
(b)(ii) above, if the Shares of such Person are not at such time and have not
been continuously over the preceding 12-month period registered under Section 12
of the Exchange Act, and such Person is a direct or indirect Subsidiary of
another Person the Shares of which are and have been so registered, the term
"Principal Party" shall refer to such other Person, or if such Person is a
Subsidiary, directly or indirectly, of more than one Person, the Shares of all
of which are and have been so registered, the term "Principal Party" shall refer
to whichever of such Persons is the issuer of the Shares having the greatest
market value of Shares outstanding.
(c) The Company shall not consummate any consolidation, merger or
sale or transfer of assets or earning power referred to in Section 13(a) unless
the Principal
48
Party shall have a sufficient number of authorized Shares that have not been
issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and the
Principal Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the Principal Party shall, upon consummation
of such consolidation, merger or sale or transfer of assets or earning power,
assume this Rights Agreement in accordance with Sections 13(a) and (b) hereof
and that all rights of first refusal or preemptive rights in respect of the
issuance of Shares of the Principal Party upon exercise of outstanding Rights
have been waived and that such transaction shall not result in a default by the
Principal Party under this Rights Agreement, and further providing that, as soon
as practicable after the date of any consolidation, merger or sale or transfer
of assets or earning power referred to in Section 13(a) hereof, the Principal
Party will:
(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, use its best efforts to cause such registration
statement to become effective as soon as practicable after such
49
filing and use its best efforts to cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the Act)
until the date of expiration of the Rights, and similarly comply with applicable
state securities laws;
(ii) use reasonable efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a national
securities exchange or to meet the eligibility requirements for quotation on
NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act. In the event that any of the transactions described in Section
13(a) hereof shall occur at any time after the occurrence of the transaction
described in Section 11(a)(ii) hereof, the Rights which have not theretofore
been exercised shall, subject to the provisions of Section 7(e) hereof,
thereafter be exercisable in the manner described in Section 13(a).
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any of its
authorized securities or in its Certificate of Incorporation or By-laws or other
instrument
50
governing its corporate affairs, which provision would have the effect of (i)
causing such Principal Party to issue, in connection with, or as a consequence
of, the consummation of a transaction referred to in this Section 13, Shares of
such Principal Party at less than the then Fair Market Value per Share
(determined pursuant to Section 11(d) hereof) or securities exercisable for, or
convertible into, Shares of such Principal Party at less than such then Fair
Market Value (other than to holders of Rights pursuant to this Section 13) or
(ii) providing for any special payment, tax or similar provisions in connection
with the issuance of the Shares of such Principal Party pursuant to the
provisions of Section 13, then, in such event, the Company shall not consummate
any such transaction unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall have been
canceled, waived or amended, or that the authorized securities shall be
redeemed, so that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed transaction.
51
Section 14. Fractional Rights and Fractional Shares.
(a) [Intentionally omitted].
(b) The Company shall not be required to issue
fractions of Shares upon exercise, redemption or exchange of the Rights or to
distribute certificates which evidence fractional Shares. In lieu of issuing
fractions of Shares, the Company may, at its election, (i) pay to the registered
holder of Right Certificates at the time such Right is exercised or redeemed an
amount in cash equal to the same fraction of the Fair Market Value of a Share or
(ii) cause depositary receipts to be issued evidencing fractions of Shares
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that the holders of
such depositary receipts shall have all of the rights, privileges and
preferences to which they would be entitled as owners of the Shares.
(c) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional Shares upon
exercise or redemption of a Right.
52
Section 15. Rights of Action. All rights of action in respect of
this Rights Agreement, except the rights of action given to the Rights Agent in
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, any holder of record of the
Shares in its capacity as a holder of Rights); and any holder of record of any
Right Certificate (or, prior to the Distribution Date, any holder of record of
the Shares in its capacity as a holder of Rights), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, any holder of record of the Shares in their capacity as
holders of Rights), may, in his own behalf and for his own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this Rights 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 Rights Agreement and will be entitled to specific performance of
the obligations under, and injunctive relief against actual or
53
threatened violations of, the obligations of any Person subject to this Rights
Agreement.
Section 16. Agreement of Right Holders. Each holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be evidenced by
the certificates for Shares registered in the name of the holders of the
Shares (together, where applicable, with the Summary of Rights) and not by
separate Right Certificates, and each Right shall be transferable only
simultaneously and together with the transfer of Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office of the Rights Agent, duly endorsed or accompanied
by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person
in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Share certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on
54
the Right Certificates or the associated Share certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any
notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Shares or any other
securities which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of trustees or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in Section 24 hereof), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
55
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable expenses and counsel fees
and other disbursements incurred in the administration and execution of this
Rights Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent, for anything done
or omitted to be done by the Rights Agent in connection with the acceptance and
administration of this Rights Agreement, including the cost and expenses of
defending against any claim of liability relating to the Rights or this Rights
Agreement.
(b) The Rights Agent shall be protected against, and shall incur no
liability for or in respect of, any action taken, suffered or omitted by it in
connection with its administration of this Rights Agreement in reliance upon any
Right Certificate or certificate for Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other
56
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation of, or Change in Name of, the
Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Rights Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Rights Agreement any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
57
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) 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; 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; in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
58
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman, the Chief Executive
Officer, the President or any Vice President and by the Treasurer or the
Secretary of the Company and delivered to the Rights Agent. Any such certificate
shall be full authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Rights 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.
59
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Rights Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights 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 Company of any
covenant or condition contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any adjustment required under the
provisions of Sections 11, 13 or 23 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 a certificate describing
any such adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Shares
to be issued
60
pursuant to this Rights Agreement or any Right Certificate or as to whether any
Shares will, when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company 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 the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman, the President or any Vice President or the Secretary or the Treasurer
of the Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with instructions of any
such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or
61
lend money to the Company or otherwise act as fully and freely as though it were
not the Rights Agent under this Rights Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Shares by registered or certified mail. The Company
may remove the Rights Agent or any successor Rights Agent (with or without
cause) upon 30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Shares by
registered or certified mail. If the
62
Rights Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent.
Notwithstanding the foregoing provisions of this Section 21, in no event shall
the resignation or removal of a Rights Agent be effective until a successor
Rights Agent shall have been appointed and have accepted such appointment. If
the Company shall fail to make such appointment within a period of 30 days after
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 Company), then the incumbent Rights Agent or the holder of
record 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 Company or by such a court, shall be (a) a corporation
organized and doing business under the laws of the United States or of any state
thereof, in good standing, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination in the conduct of its corporate trust or stock transfer business by
federal or state authorities and which has at the time of its
63
appointment as Rights Agent a combined capital and surplus of at least
$5,000,000 or (b) an Affiliate controlled by a corporation described in clause
(a) of this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed, but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Shares, and mail a notice thereof in writing to the registered holders of
the Right Certificates. Failure to give any notice provided for in this Section
21, however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be. Notwithstanding the foregoing
provisions, in the event of resignation, removal or incapacity of the Rights
Agent, the Company shall have the authority to act as the Rights Agent until a
successor Rights Agent shall have assumed the duties of the Rights Agent
hereunder.
64
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Rights Agreement or of the Rights to the contrary, the
Company may, at its option and at any time, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Trustees to
reflect any adjustment or change in the Exercise Price per Share and/or the
number or kind or class of Shares of stock or other securities or property
purchasable under the Right Certificates, in either case, made in accordance
with the provisions of this Rights Agreement.
Section 23. Redemption.
(a) The Company may, at its option, redeem all but not less than all
of the then outstanding Rights, at any time prior to the close of business on
the earlier of (i) the tenth day following the Share Acquisition Date, subject
to extension at the option of the Board of Trustees, as provided in Section 26
hereof or (ii) the Final Expiration Date, at a redemption price of $.005 per
Right, appropriately adjusted to reflect any share split, share dividend or
similar transaction occurring after the date hereof (the "Redemption Price").
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable pursuant to Section 11(a)(ii) prior
65
to the expiration of the Company's right of redemption hereunder.
(b) Without any further action and without any notice, the right to
exercise the Rights will terminate effective at the time so designated by action
of the Board of Trustees ordering the redemption of the Rights, and the only
right thereafter of the holders of the Rights shall be to receive the Redemption
Price. Within 10 days after the effective time of the action of the Board of
Trustees ordering the redemption of the Rights, the Company shall give notice of
such redemption to the holders of the then outstanding Rights by mailing such
notice to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Shares. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each notice of redemption will state the method by which
the payment of the Redemption Price will be made. At the option of the Board of
Trustees, the Redemption Price may be paid in cash to each Rights holder or by
the issuance of Shares (and, at the Company's election pursuant to Section 14(b)
hereof, cash or
66
depositary receipts in lieu of fractions of Shares) having a Fair Market Value
equal to such cash payment.
Section 24. Notice of Proposed Actions.
(a) In case the Company, after the Distribution
Date, shall propose (i) to effect any of the transactions referred to in Section
11(a)(i) or to pay any dividend to the holders of record of its Shares payable
in Shares of any class or to make any other distribution to the holders of
record of its Shares (other than a regular periodic cash dividend at a rate not
in excess of 150% of the rate of the last cash dividend theretofore paid), or
(ii) to offer to the holders of record of its Shares options, warrants, or other
rights to subscribe for or to purchase Shares (including any security
convertible into or exchangeable for Shares) or Shares of any class or any other
securities, options, warrants, convertible or exchangeable securities or other
rights, or (iii) to effect any reclassification of its Shares or any
recapitalization or reorganization of the Company, or (iv) to effect any
consolidation or merger with or into, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person or Persons,
67
or (v) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of record of a
Right Certificate, in accordance with Section 25, notice of such proposed
action, which shall specify the record date for the purposes of such transaction
referred to in Section 11(a)(i) or such dividend or distribution, or the date on
which such reclassification, recapitalization, reorganization, consolidation,
merger, sale or transfer of assets, liquidation, dissolution, or winding up is
to take place and the record date for determining participation therein by the
holders of record of Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or (ii) above
at least 10 days prior to the record date for determining holders of record of
the Shares for purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such proposed action
or the date or participation therein by the holders of record of Shares,
whichever shall be the earlier. The failure to give notice required by this
Section 24 or any defect therein shall not affect the legality or validity of
the action taken by the Company or the vote upon any such action.
68
(b) In case any of the transactions referred to in either Section
11(a)(ii) or Section 13 of this Rights Agreement are proposed, then, in any such
case, the Company shall give to each holder of Rights, in accordance with
Section 25 hereof, notice of the proposal of such transaction at least 10 days
prior to consummating such transaction, which notice shall specify the proposed
event and the consequences of the event to holders of Rights under Section
11(a)(ii) or Section 13 hereof, as the case may be, and, upon consummating such
transaction, shall similarly give notice thereof to each holder of Rights.
Section 25. Notices. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of record of
any Right Certificate or Right to or on the Company 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:
New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Subject to the provisions of Section 21, any notice or demand authorized by this
Rights Agreement to be given or made by the Company or by the holder of record
of any Right
69
Certificate or Right 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 Company) as follows:
BankBoston, N.A.
c/o Boston EquiServe
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Client Administration
Mail Stop 45-02-62
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to the holder of record of any Right Certificate
or Right 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 Company.
Section 26. Supplements and Amendments. For as long as the Rights
are then redeemable and except as provided in the last sentence of this Section
26, the Company may in its sole and absolute discretion, and the Rights Agent
shall if the Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of the Rights or the Shares. At
any time when the Rights are not then redeemable and except as provided in the
last sentence of this Section 26, the Company may, and the Rights Agent shall if
the Company so directs, supplement or amend this Agreement without the
70
approval of any holders of Rights Certificates in order (a) to cure any
ambiguity, (b) to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein or (c) to change
or supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable, provided, that no such supplement or amendment pursuant
to clause (c) above shall materially adversely affect the interests of the
holders of Right Certificates as such. Upon the delivery of a certificate from
an appropriate officer of the Company which states that the proposed supplement
or amendment is in compliance with the terms of this Section 26, the Rights
Agent shall execute such supplement or amendment. Notwithstanding anything
contained in this Rights Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price or the Final Expiration Date.
Section 27. Exchange. (a) The Board of Trustees may, at its option,
at any time after any Person becomes an Acquiring Person, exchange all or part
of the then outstanding and exercisable Rights (which shall not include Rights
that have become null and void pursuant to the provisions of Section 7(e)
hereof) for Shares at an exchange ratio of one Share per Right, appropriately
adjusted to
71
reflect any share split, share dividend or similar transaction occurring after
the date hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of Trustees shall
not be empowered to effect such exchange at any time after any Person (other
than an Exempt Person), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the Voting Shares then
outstanding.
(b) Immediately upon the action of the Board of Trustees ordering
the exchange of any Rights pursuant to paragraph (a) of this Section 27 and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
(other than a holder of Rights which have become null and void pursuant to the
provisions of Section 7(e) hereof) shall be to receive that number of Shares
equal to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders of such Rights at
their last addresses as
72
they appear upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange will state the method
by which the exchange of the Shares for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become null and void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) The Company shall not be required to issue fractions of Shares
or to distribute share certificates which evidence fractional Shares. In lieu of
such fractional Shares, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional Shares would otherwise
be issuable an amount in cash equal to the same fraction of the Fair Market
Value of a whole Share. For the purposes of this paragraph (c), the Fair Marekt
Value of a whole Share shall be the closing price of a Share (as determined
pursuant to the second sentence of Section 11(d) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 27.
73
Section 28. Successors. All of the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders of Shares in their
capacity as holders of Rights) any legal or equitable right, remedy or claim
under this Rights Agreement; but this Rights Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the holders of record of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of Shares in their capacity as holders of Rights).
Section 30. Massachusetts Contract. This Rights Agreement and each
Right Certificate issued hereunder shall be deemed to be a contract made under
the laws of the Commonwealth of Massachusetts and for all purposes shall be
governed by and construed and enforced in accordance with the laws of such
Commonwealth applicable to contracts to be made and performed entirely within
such Commonwealth.
74
Section 31. Counterparts. This Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 32. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 33. Severability. If any term, provision, covenant or
restriction of this Rights 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 Rights
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 34. Trust Provision. This Agreement and all documents,
agreements, understandings and arrangements relating thereto have been
negotiated, executed and delivered on behalf of the Company by the trustees or
officers thereof in their representative capacity under the Amended and Restated
Declaration of Trust of New Plan Realty
75
Trust dated as of January 15, 1996 and not individually, and bind only the trust
estate of the Company, and no trustee, officer, employee, agent or shareholder
of the Company shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings
of the Company thereunder, and any person or entity dealing with the Company in
connection therewith shall look solely to the trust estate for the payment of
any claim or for the performance of any agreement, obligation or undertaking
thereunder. The Rights Agent acknowledges and agrees that each agreement and
other document executed by the Company in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
76
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first above written.
NEW PLAN REALTY TRUST
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
BANKBOSTON, N.A.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Account Manager
77
EXHIBIT A
AS PROVIDED IN THE RIGHTS AGREEMENT (AS REFERRED TO BELOW),
RIGHTS ISSUED TO OR BENEFICIALLY OWNED BY ACQUIRING PERSONS
OR THEIR AFFILIATES OR ASSOCIATES (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS SHALL BE NULL AND VOID AND MAY NOT BE TRANSFERRED TO
OR EXERCISED BY ANY PERSON.
NEW PLAN REALTY TRUST
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF BENEFICIAL INTEREST
On April 13, 1998, the Board of Trustees of New Plan Realty Trust
(the "Company") declared a distribution of one share purchase right (a "Right")
for each outstanding Share of Beneficial Interest, without par value, of the
Company (the "Shares"). The distribution is payable as of April 24, 1998 to
shareholders of record on that date. Each Right entitles the registered holder
thereof to purchase from the Company one Share at a price of $90.00 (the
"Exercise Price"). The description and terms of the Rights are set forth in a
Rights Agreement, as the same may be amended from time to time (the "Rights
Agreement"), between the Company and BankBoston, N.A., as rights agent (the
"Rights Agent").
As discussed below, initially the Rights will not be exercisable,
certificates will not be sent to shareholders and the Rights will automatically
trade with the Shares.
Until the day which is the earlier of (i) the tenth day after the
date of the public announcement that a person or group of affiliated or
associated persons (collectively, an "Acquiring Person") has acquired beneficial
ownership (as described in the Rights Agreement) of 15% or more of the Company's
outstanding voting shares, and (ii) the tenth business day (or such later date
as may be determined by the Board of Trustees prior to such time as any person
or group of affiliated or associated persons becomes an Acquiring Person) after
the commencement or public announcement of a person's or group's intention to
commence a tender or exchange offer whose consummation would result in the
beneficial ownership of 15% or more of the outstanding voting shares of the
Company, even if no
NYFS05...:\40\65240\0003\2093\EXH4028U.50D
purchases actually occur pursuant to such offer (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced, with respect to
any Share certificates outstanding as of April 24, 1998, by such Share
certificates themselves together with a copy of this Summary of Rights.
Notwithstanding the foregoing, the definition of Acquiring Person shall not
include (A) the Company, (B) any subsidiary of the Company, (C) any employee
benefit plan or employee stock plan of the Company or of any subsidiary of the
Company or any trust or other entity organized, appointed, established or
holding Shares for or pursuant to the terms of any such plan or (D) any person
or group of affiliated or associated persons whose beneficial ownership of 15%
or more of the outstanding voting shares of the Company results solely from (i)
any action or transaction approved by the Board of Trustees before such person
or group of affiliated or associated persons acquires such 15% beneficial
ownership or (ii) a reduction in the number of outstanding voting shares of the
Company pursuant to a transaction or transactions approved by the Board of
Trustees (provided that any such person or group of affiliated or associated
persons that does not become an Acquiring Person by reason of clause (i) or (ii)
above shall become an Acquiring Person upon its acquisition of an additional 1%
of the Company's outstanding voting shares unless such acquisition of additional
voting shares will not result in such person or group of affiliated or
associated persons becoming an Acquiring Person by reason of such clause (i) or
(ii)).
The Rights Agreement provides that, until the Distribution Date, the
Rights will be represented by and transferred with, and only with, the Shares.
Until the Distribution Date (or earlier redemption or expiration of the Rights),
new Share certificates issued after April 24, 1998 will contain a legend
incorporating the Rights Agreement (and the Rights represented thereby) by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any of the Share certificates
outstanding as of April 24, 1998, with or without a copy of this Summary of
Rights, also will constitute the surrender or transfer, as applicable, of the
Rights associated with the Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Shares as of the close of business on the Distribu-
2
tion Date and such separate Right Certificates alone will evidence the Rights
from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the close of business on April 11, 2008, unless earlier
redeemed or exchanged by the Company as described below.
The number of Shares issuable upon exercise of the Rights are
subject to certain adjustments from time to time in the event of, among other
things, a Share dividend on, or a subdivision or combination of, the Shares. The
Exercise Price is subject to adjustment in the event of, among other things,
extraordinary distributions of cash or other property to holders of Shares.
Unless the Rights are earlier redeemed or exchanged, in the event
that a person or group of affiliated or associated persons becomes an Acquiring
Person, the Rights Agreement provides that each holder of record of a Right,
other than the Acquiring Person (whose Rights will thereupon become null and
void), will thereafter have the right to receive, upon payment of the Exercise
Price, that number of Shares having a market value at the time of the
transaction equal to two times the Exercise Price.
In addition, unless the Rights are earlier redeemed or exchanged, in
the event that, after the time that a person or group of affiliated or
associated persons becomes an Acquiring Person, the Company were to be acquired
in a merger or other business combination (in which any Shares are changed into
or exchanged for other securities or assets) or more than 50% of the assets or
earning power of the Company and its subsidiaries (taken as a whole) were to be
sold or transferred in one or a series of related transactions, the Rights
Agreement provides that proper provision will be made so that each holder of
record of a Right, other than the Acquiring Perosn (whose Rights will thereupon
become null and void), will thereafter have the right to receive, upon payment
of the Exercise Price, that number of shares of common stock of the acquiring
company having a market value at the time of such transaction equal to two times
the Exercise Price.
The Rights Agreement provides that, notwithstanding any provision of
the Rights Agreement to the contrary, no Right will be exercisable for a number
of Shares that would cause the ownership limit set forth in the
3
Company's Amended and Restated Declaration of Trust (or any successor document)
to be exceeded.
At any time after any person or group of affiliated or associated
persons becomes an Acquiring Person and prior to the acquisition by such
Acquiring Person of 50% or more of the Company's outstanding voting shares, the
Board of Trustees of the Company may exchange the Rights (other than Rights
owned by the Acquiring Person which will have become null and void), in whole or
in part, at an exchange ratio of one Share per Right (subject to adjustment).
Fractions of Shares which would otherwise be issued upon exercise or
redemption of the Rights may, at the election of the Company, be evidenced by
depositary receipts. The Rights Agreement also provides that the Company may pay
cash in lieu of fractional Shares.
At any time on or prior to the close of business on the tenth day
after a public announcement that a person or group of affiliated or associated
persons has become an Acquiring Person (or such later date as may be authorized
by the Board of Trustees), the Company may redeem the Rights in whole, but not
in part, at a price of $.005 per Right (the "Redemption Price"), payable at the
election of the Company in cash or Shares. Following the effective time of the
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
For as long as the Rights are then redeemable, the Company may,
except with respect to the Redemption Price or date of expiration of the Rights,
amend the Rights in any manner, including an amendment to extend the time period
in which the Rights may be redeemed. At any time when the Rights are not then
redeemable, the Company may amend the Rights in any manner that does not
materially adversely affect the interests of holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no rights
as a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated April 23, 1998.
4
A copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, as the same may
be amended from time to time, which is incorporated in this summary description
herein by reference.
5
EXHIBIT B
[Form of Right Certificate]
Certificate No. W- ______ Rights
NOT EXERCISABLE AFTER APRIL 11, 2008 OR EARLIER AFTER REDEMPTION OR EXCHANGE. AT
THE OPTION OF THE COMPANY, THE RIGHTS ARE SUBJECT TO REDEMPTION, AT $.005 PER
RIGHT, OR EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF
(AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS SHALL BE NULL AND VOID AND MAY NOT BE EXERCISED BY OR TRANSFERRED TO
ANY PERSON.
Right Certificate
NEW PLAN REALTY TRUST
This certifies that _____________, or registered assigns, is the
registered owner of the number of rights set forth above (the "Rights"), each of
which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of April 23, 1998, as the same may
be amended from time to time (the "Rights Agreement") between New Plan Realty
Trust, a Massachusetts business trust (the "Company"), and BankBoston, N.A. (the
"Rights Agent") to purchase from the Company 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 time) on April 11, 2008 at the principal office of the Rights Agent,
or its successors as Rights
NYFS05...:\40\65240\0003\2093\EXH4028U.51E
Agent, in Canton, Massachusetts, one Share of Beneficial Interest, without par
value, of the Company (the "Shares") at an exercise price of $90.00 (the
"Exercise Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed.
As provided in the Rights Agreement, the Exercise Price and the
number of Shares (or fraction of a Share) 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 and, upon the
happening of certain events, securities other than Shares, or other property,
may be acquired upon exercise of the Rights evidenced by this Right Certificate,
as provided by the Rights Agreement.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are 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 of the Rights Agent,
the Company and the holders of record of the Right Certificates. Copies of the
Rights Agreement are on file at the principal executive office of the Company.
2
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 of record thereof to purchase a like
aggregate number of Shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to purchase. If
this Right Certificate shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof, another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.005 per Right (payable in cash or in Shares). The Rights
Agreement further provides that the Company may, at any time after a Person
becomes an Acquiring Person but before such Person becomes the Beneficial Owner
of 50% or more of the Voting Shares then outstanding (as such terms are defined
in the Rights Agreement), exchange all or part of the then outstanding and
exercisable Rights for Shares at an exchange ratio of one Share per Right
(subject to adjustment).
3
No fractional Shares are required to be issued upon the exercise or
redemption of any Right or Rights evidenced hereby, and in lieu thereof the
Company may cause depositary receipts to be issued and/or a cash payment to be
made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Shares or
of any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of trustees or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action or to receive notice of meetings or
other actions affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been duly and
properly exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
4
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of __________________, 19__.
ATTEST: NEW PLAN REALTY TRUST
By:
--------------------- ----------------------------
Secretary Title:
Countersigned:
By:
-----------------------------------
Authorized Signature
5
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder
desires to transfer the Right Certificates.)
FOR VALUE RECEIVED
-------------------------------------------------
hereby sells, assigns and transfers unto
---------------------------------------
--------------------------------------------------------------------------------
(Please print name and address of transferee)
--------------------------------------------------------------------------------
Rights evidenced by 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 Company, with full power of substitution.
Dated: ______________________, 19__
------------------------------
Signature
Signature Guaranteed:
6
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned or
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Associate or an Affiliate thereof (as such terms are defined pursuant to the
Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined pursuant to the Rights
Agreement).
Dated: __________, 19__
-----------------------------
Signature
NOTICE
------
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
7
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder
desires to exercise the Right Certificate.)
TO NEW PLAN REALTY TRUST:
The undersigned hereby irrevocably elects to exercise
______________________ Rights represented by this Right Certificate to purchase
the Shares of Beneficial Interest issuable upon the exercise of such Rights and
requests that certificates for such share(s) be issued in the name:
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:
8
Please insert social security or other identifying number:
----------------------
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
Dated: _______________, 19__
------------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the fact of this
Right Certificate)
Signature Guaranteed:
9
