Exhibit 4.1
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO RIGHTS AGREEMENT, dated as of August 31, 2006,
is between BNP Residential Properties, Inc., a Maryland corporation (the
"Company"), and American Stock Transfer and Trust Company, as rights agent (the
"Rights Agent"), and amends the Rights Agreement, dated as March 18, 1999,
between the Company and the Rights Agent (the "Rights Agreement").
RECITALS
A. Concurrently herewith the Company is entering into that certain
Agreement and Plan of Merger (the "Merger Agreement") by and among the Company,
BNP Residential Properties Limited Partnership, a Delaware limited partnership,
Xxxxxxx & Xxxxx Bravo Holdings, LLC, a Delaware limited partnership ("Buyer"),
Xxxxxxx & Xxxxx Bravo Acquisition Corp., a Maryland corporation, ("Buyer
Acquisition Entity"), and Xxxxxxx & Xxxxx Bravo Operating Partnership, a
Delaware limited partnership ("Buyer Operating Partnership"), providing for the
merger of the Company with and into Buyer Acquisition Entity (the "Merger").
B. The willingness of each of Buyer Acquisition Entity, Buyer and Buyer
Operating Partnership to enter into the Merger Agreement is conditioned on,
among other things, the amendment of the Rights Agreement on the terms set forth
herein.
C. Section 27 of the Rights Agreement provides that, among other things,
prior to the Distribution Date, the Company may and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of the Rights
Agreement as the Company may deem necessary or desirable without the approval of
any holders of certificates representing common shares of the Company.
D. As of the time immediately prior to this Amendment, no Person has become
an Acquiring Person for purpose of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereby agree as
follows:
AGREEMENTS
Section 1. Section 1 of the Rights Agreement is hereby amended by adding
the following definitions thereto:
"Acquiror Entities" shall mean Buyer, Buyer Acquisition Entity and Buyer
Operating Partnership.
"Buyer" shall mean Xxxxxxx & Xxxxx Bravo Holdings, LLC, a
StateplaceDelaware limited partnership).
"Buyer Acquisition Entity" shall mean Xxxxxxx & Xxxxx Bravo Acquisition
Corp., a placeStateMaryland corporation.
"Buyer Operating Partnership" shall mean Xxxxxxx & Xxxxx Bravo Operating
Partnership, a placeStateDelaware limited partnership.
"Merger" shall mean the merger of the Company with and into Buyer
Acquisition Entity as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
August 31, 2006, by and among the Company, BNP Residential Properties Limited
Partnership, Buyer, Buyer Acquisition Entity and Buyer Operating Partnership,
providing for the Merger.
"Voting Agreement" shall mean that certain Voting Agreement, dated as of
August 31, 2006, as amended from time to time, by and among Buyer and
signatories thereto.
Section 2. Section 1(a) of the Rights Agreement is hereby amended by adding
to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, neither of the
Acquiror Entities shall be or become an "Acquiring Person" (and no Shares
Acquisition Date shall occur) as a result of (i) the execution of the Merger
Agreement (or any amendments thereto in accordance with the terms thereof), (ii)
the execution of the Voting Agreement (or any amendments thereto in accordance
with the terms thereof), (iii) the consummation of the transactions contemplated
by the Merger Agreement (including, without limitation, the Merger); or (iv) the
announcement of the Merger or any of the foregoing (each of (i) through (iv) a
"Merger Event")."
Section 3. Section 3(a) of the Rights Agreement is hereby amended by adding
to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, no Distribution
Date shall occur as a result of a Merger Event."
Section 4. Section 7 of the Rights Agreement is hereby amended by adding to
the end thereof the following:
"(e) Notwithstanding anything to the contrary contained herein, this
Agreement and the Rights shall terminate, without any action by any party
hereto, effective upon the Merger Effective Time (as defined in the Merger
Agreement)."
Section 5. Section 11 of the Rights Agreement is hereby amended by adding
to the end thereof the following:
"(o) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 11 will not apply to or be triggered by a Merger
Event."
Section 6. Section 13 of the Rights Agreement is hereby amended by adding
to the end thereof the following:
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"Notwithstanding anything to the contrary contained herein, the provision
of this Section 13 will not apply to or be triggered by a Merger Event."
Section 7. The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Amendment.
Section 8. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended by this Amendment No. 2.
Section 9. Except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
Section 10. This Amendment No. 2 may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 11. The Company and the Rights Agent hereby acknowledge and agree
that the Rights Agent (as defined herein) is the "Rights Agent" (as defined in
the Agreement) under the Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be duly executed, all as of the day and year first above written.
BNP RESIDENTIAL PROPERTIES, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and
General Counsel
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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