Exhibit 10.1
_______________________________________________
GLIMCHER REALTY TRUST
and
THE XXXXXX TRUST AND SAVINGS BANK
_____________________________________
Rights Agent
Agreement
Dated as of March 9, 1999
_______________________________________________
TABLE OF CONTENTS
Page
Number
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . .-2-
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . . . .-8-
Section 3. Issue of Right Certificates . . . . . . . . . . . . . . . .-8-
Section 4. Form of Right Certificates. . . . . . . . . . . . . . . . -12-
Section 5. Countersignature and Registration . . . . . . . . . . . . -13-
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. . . . . . . . . . . . . . . . . . . . . . . -14-
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. . . . . . . . . . . . . . . . . . . . . . . . . . -15-
Section 8. Cancellation and Destruction of Right Certificates. . . . -17-
Section 9. Availability of Preferred Shares. . . . . . . . . . . . . -17-
Section 10. Preferred Shares Record Date. . . . . . . . . . . . . . . -20-
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights. . . . . . . . . . . . . . . . . . . . . -21-
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares . . . . . . . . . . . . . . . . . . . . . . . . -33-
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. . . . . . . . . . . . . . . . . . . . . -33-
Section 14. Fractional Rights and Fractional Shares . . . . . . . . . -35-
Section 15. Rights of Action. . . . . . . . . . . . . . . . . . . . . -37-
Section 16. Agreement of Right Holders. . . . . . . . . . . . . . . . -37-
Section 17. Right Certificate Holder Not Deemed a Shareholder . . . . -39-
Section 18. Concerning the Rights Agent . . . . . . . . . . . . . . . -39-
Section 19. Merger or Consolidation or Change of Name of Rights
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
Section 20. Duties of Rights Agent. . . . . . . . . . . . . . . . . . -41-
Section 21. Change of Rights Agent. . . . . . . . . . . . . . . . . . -44-
Section 22. Issuance of New Right Certificates. . . . . . . . . . . . -46-
Section 23. Redemption. . . . . . . . . . . . . . . . . . . . . . . . -46-
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . . . . . . -47-
Section 25. Notice of Certain Events. . . . . . . . . . . . . . . . . -49-
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . -51-
Section 27. Supplements and Amendments. . . . . . . . . . . . . . . . -52-
Section 28. Successors. . . . . . . . . . . . . . . . . . . . . . . . -53-
Section 29. Benefits of this Agreement. . . . . . . . . . . . . . . . -53-
Section 30. Severability. . . . . . . . . . . . . . . . . . . . . . . -53-
Section 31. Governing Law . . . . . . . . . . . . . . . . . . . . . . -53-
Section 32. Counterparts. . . . . . . . . . . . . . . . . . . . . . . -53-
Section 34. Determinations and Actions by the Board of Trustees . . . -54-
Exhibit A - Form of Articles Supplementary
Exhibit B- Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Shares
Agreement, dated as of March 9 1999, between Glimcher Realty Trust, a
Maryland real estate investment trust (the "Company " ), and The Xxxxxx Trust
and Savings Bank, as rights agent (the "Rights Agent").
The Board of Trustees of the Company has authorized and declared a
distribution of one preferred share purchase right (a "Right") for each
Common Share (as hereinafter defined) of the Company outstanding at the close
of business on March 22, 1999 (the "Record Date"), each Right representing
the right to purchase one one-hundredth of a Preferred Share (as hereinafter
defined), upon the terms and subject to the conditions herein set forth, and
has further authorized and directed the issuance of one Right with respect to
each Common Share that shall become outstanding between the Record Date and
the earliest of the Distribution Date, the Redemption Date and the Final
Expiration Date (as such terms are hereinafter defined), and has directed
that, upon the occurrence of a Distribution Date, if any, proper provision
shall be made such that each Equivalent Holder (as hereinafter defined) shall
receive such number of Rights as would be issued to such Equivalent Holder
upon receipt of Common Shares prior to such Distribution Date in exchange for
such Equivalent Holder's shares of Common Share Equivalents (as hereinafter
defined). Upon the occurrence of a Distribution Date, if any, proper
provision shall also be made such that each Unitholder (as hereinafter
defined) shall receive such number of Rights as would be issued to such
Unitholder upon receipt of Common Shares prior to such Distribution Date in
exchange for such Unitholder's Partnership Units (as hereinafter defined)
pursuant to the terms and conditions of the Partnership Agreement (as
hereinafter defined).
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
a. "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the Common Shares of the Company then outstanding,
but shall not include the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, (i) no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the Company
which, by reducing the number of Common Shares of the Company outstanding,
increases the proportionate number of Common Shares of the Company
beneficially owned by such Person to 15% or more of the Common Shares of the
Company then outstanding and (ii) no Person shall become an "Acquiring
Person" as a result of such person's acquisition from time to time of all of
his, her or its Common Shares pursuant to any action or transaction or series
of related actions or transactions approved by the Board of Trustees;
provided, however, that, if a Person shall become the Beneficial Owner of 15%
or more of the Common Shares of the Company then outstanding for either or
both of the reasons set forth in subclauses (i) and (ii) and, without the
prior approval of the Board of Trustees, shall, after such Common Share
acquisitions, become the Beneficial Owner of any additional Common Shares of
the Company, then such Person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, if the Board of Trustees of the Company
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 a sufficient number of Common Shares of the Company 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 any 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 Exchange Act, as in
effect on the date of this Agreement.
c. "Associate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
d. A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
i. which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
ii. which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), written or
otherwise, or upon the exercise of conversion rights, exchange rights,
rights (other than these Rights), warrants or options, or otherwise,
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a
tender or exchange offer made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act by
or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange, and provided, further, that a Unitholder shall not be deemed
the Beneficial Owner of, or to beneficially own, securities which may be
issued to such Unitholder in exchange for such Unitholder's Partnership
Units pursuant to the terms and conditons of the Partnership Agreement
unless such Unitholder actually receives the securities in exchange
therefor; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own, any security
if the agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant to, and
in accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on Schedule
13D under the Exchange Act (or any comparable or successor report); or
iii. which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of se-
curities), written or otherwise, for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to Section 1
(c)(ii)(B) hereof) or disposing of any securities of the Company or with
respect to any of the matters relating to the Company referred to in
Item 4 of Schedule 13D under the Exchange Act.
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, the phrase "then outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the Company, shall mean the
number of such securities then issued and outstanding together with the
number of such securities not then actually issued and outstanding which such
Person would be deemed to own beneficially hereunder.
e. "Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in the State of Ohio 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.,
Cleveland time, on such date; provided, however, that, if such date is not a
Business Day, it shall mean 5:00 P.M., Cleveland time, on the next succeeding
Business Day.
g. "Common Share Equivalent" shall mean any shares of beneficial
interest of the Company (other than the Common Shares), that, pursuant to the
Amended and Restated Declaration of Trust of the Company, dated as of
November 1, 1993, as amended from time to time (the "Declaration of Trust"),
would be entitled to receive the Rights upon the occurrence of a Distribution
Date, if any.
h. "Common Shares" when used with reference to the Company shall mean
the Common Shares of Beneficial Interest, par value $.01 per share, of the
Company. "Common Shares" when used with reference to any Person other than
the Company shall mean the shares (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of
another Person, the Person or Persons which ultimately control such first-
mentioned Person.
i. "Distribution Date" shall have the meaning set forth in Section
3(a) hereof.
j. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
k. "Exchange Ratio" shall have the meaning set forth in Section 24(a)
hereof.
l. "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
m. "NASDAQ" shall mean the National Association of Securities Dealers.
Inc. Automated Quotation System.
n. "Partnership" shall mean Glimcher Properties Limited Partnership, a
Delaware limited partnership.
o. "Partnership Agreement" shall mean the Limited Partnership
Agreement of Glimcher Properties Limited Partnership, dated as of November
30, 1993, as amended to date.
p. "Partnership Units" shall have the meaning set forth in Section
3(e) hereof.
q. "Person" shall mean any individual, firm, corporation, partnership,
limited partnership, limited liability partnership, business trust, real
estate investment trust, limited liability company, unincorporated
association or other entity, and shall include any successor (by merger or
otherwise) of such entity.
r. "Preferred Shares" shall mean shares of Series E Junior
Participating Preferred Shares of Beneficial Interest, par value $.01 per
share, of the Company having the rights and preferences set forth in the Form
of Articles Supplementary attached to this Agreement as Exhibit A.
s. "Purchase Price" shall have the meaning set forth in Section 4
hereof.
t. "Record Date" shall have the meaning set forth in the second
paragraph hereof.
u. "Redemption Date" shall have the meaning set forth in Section 7(a)
hereof.
v. "Redemption Price" shall have the meaning set forth in Section 23
(a) hereof.
w. "Right " shall have the meaning set forth in the second paragraph
hereof.
x. "Right Certificate" shall have the meaning set forth in Section
3(a) hereof.
y. "Securities Act " shall mean the Securities Act of 1933, as
amended.
z. "Shares Acquisition Date" shall mean the earlier of (i) the first
date of public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such or (ii) the public disclosure of facts by
the Company or an Acquiring Person indicating that an Acquiring Person has
become such.
aa. "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
ab. "Summary of Rights" shall have the meaning set forth in Section
3(b) hereof.
ac. "Trading Day" shall have the meaning set forth in Section 11(d)
hereof.
ad. "Unitholders" shall have the meaning set forth in Section 3(e)
hereof.
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 (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date, also be the holders of the Common Shares of the Company)
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. In the event
the Company appoints one or more Co-Rights Agents, the respective duties of
the Rights Agent and the Co-Rights Agents shall be as the Company shall
determine.
Section 3. Issue of Right Certificates. a. Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth Business
Day (or such later date as may be determined by action of the Board of
Trustees of the Company prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, any entity holding Common Shares
of the Company for or pursuant to the terms of any such plan) of, or of the
first public announcement of the intention of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, any entity holding Common Shares
of the Company for or pursuant to the terms of any such plan) to commence, a
tender or exchange offer the consummation of which would result in any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, any entity holding
Common Shares of the Company for or pursuant to the terms of any such plan)
becoming the Beneficial Owner of Common Shares of the Company aggregating 15%
or more of the then outstanding Common Shares of the Company (including any
such date which is after the date of this Agreement and prior to the issuance
of the Rights; the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares of
the Company registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right Certificates
will be transferable only in connection with the transfer of Common Shares of
the Company. 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, insured, postage-prepaid mail, to each record holder of
Common Shares of the Company as of the Close of Business on the Distribution
Date, at the address of such holder shown on the records of the Company, a
Right Certificate, in substantially the form of Exhibit B hereto (a "Right
Certificate"), evidencing one Right for each Common Share so held. As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
b. On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Preferred Shares,
in substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of Common Shares of
the Company as of the Close of Business on the Record Date, at the address of
such holder shown on the records of the Company. With respect to
certificates for Common Shares of the Company outstanding as of the Record
Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof together with a
copy of the Summary of Rights attached thereto. Until the Distribution Date
(or the earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares of the Company
outstanding on the Record Date, with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights
associated with the Common Shares of the Company represented thereby.
c. Certificates for Common Shares of the Company which become
outstanding (including, without limitation, reacquired Common Shares of the
Company referred to in the last sentence of this paragraph (c)) after the
Record Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed on, printed
on, written on or otherwise affixed to them substantially the following
legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in an Agreement between Glimcher Realty
Trust and The Xxxxxx Trust and Savings Bank, dated as of March 9, 1999,
as it may be amended from time to time (the "Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of which is
on file at the principal executive offices of Glimcher Realty Trust.
Under certain circumstances, as set forth in the Agreement, such Rights
(as defined in the Agreement) will be evidenced by separate certificates
and will no longer be evidenced by this certificate. Glimcher Realty
Trust will mail to the holder of this certificate a copy of the
Agreement without charge after receipt of a written request therefor.
Under certain circumstances, as set forth in the Agreement, Rights
beneficially owned by any Person (as defined in the Agreement) who
becomes an Acquiring Person (as defined in the Agreement) may become
null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares of the
Company represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate
shall also constitute the transfer of the Rights associated with the Common
Shares of the Company represented thereby. In the event that the Company
purchases or acquires any Common Shares of the Company after the Record Date
but prior to the Distribution Date, any Rights associated with such Common
Shares of the Company shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any Rights associated with the
Common Shares of the Company which are no longer outstanding.
d. On the Distribution Date, proper provision shall be made by the
Company in order to provide holders (except the Company) of shares of Common
Share Equivalents ("Equivalent Holders") with such number of Rights,
evidenced by Rights Certificates, as would be issued to such Equivalent
Holders upon receipt of Common Shares prior to such Distribution Date in
exchange for such Equivalent Holder's shares of Common Share Equivalents, and
such holder shall thereafter have all of the rights, privileges, benefits and
obligations with respect to such Rights as are provided for herein with
respect to holders of Common Shares.
e. On the Distribution Date, proper provision shall be made by the
Company in order to provide holders (except the Company) ("Unitholders") of
partnership units ("Partnership Units") with such number of Rights, evidenced
by Rights Certificates, as would be issued to such Unitholders upon receipt
of Common Shares prior to such Distribution Date in exchange for such
Unitholder's Partnership Units pursuant to the terms and conditions of the
Partnership Agreement, and such Unitholders shall thereafter have all of the
rights, privileges, benefits and obligations with respect to such Rights as
are provided for herein with respect to holders of Common Shares.
f. Notwithstanding anything in this Agreement to the contrary, in the
event that prior to the earlier of the Distribution Date or the redemption,
expiration or termination of the Rights, any Common Shares of the Company are
retired and cancelled in connection with the conversion of such shares to
Excess Shares (as defined in the Declaration of Trust of the Company)
pursuant to Section 6.6 of the Declaration of Trust of the Company, then the
associated Rights shall be deemed to be similarly retired and cancelled.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase Preferred Shares and of assignment to be
printed on the reverse thereof) shall be substantially the same as Exhibit B
hereto, and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any applicable rule or regulation made pursuant thereto or with any
applicable rule or regulation of any stock exchange or the National As-
sociation of Securities Dealers, Inc. on which the Rights may from time to
time by listed, or to conform to usage. Subject to the provisions of
Sections 11 and 22 hereof, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-hundredths of a Preferred Share as
shall be set forth therein at the price per one one-hundredth of a Preferred
Share set forth therein (the "Purchase Price"), but the number of such one
one-hundredths of a Preferred Share and the Purchase Price shall be subject
to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President, any of its Vice
Presidents or its Treasurer, either manually or by facsimile signature, shall
have affixed thereto the Company's seal or a facsimile thereof, and shall be
attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose
unless countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery
by the Company, such Right Certificates, nevertheless, may be countersigned
by the Rights Agent and issued and delivered by the Company with the same
force and effect as though the individual who signed such Right Certificates
had not ceased to be such officer of the Company; and any Right Certificate
may be signed on behalf of the Company by any individual who, at the actual
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 Agreement any such individual was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its principal office, books for registration and transfer of the
Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates and the 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.
Subject to the provisions of Section 14 hereof, at any time after the Close
of Business on the Distribution Date, and at or prior to the Close of
Business on the earlier of the Redemption Date or the Final Expiration Date,
any Right Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates entitling the registered holder to purchase a like number
of one one-hundredths of a Preferred Share as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at the
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 by the holders of the Rights Certificates of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of Right Certificates.
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, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation
of the Right Certificate if mutilated, the Company will make and deliver a
new Right Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed
or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. a. The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein), in whole or
in part, at any time after the Distribution Date, upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal office of the
Rights Agent, together with payment of the Purchase Price for each one one-
hundredth of a Preferred Share as to which the Rights are exercised, at or
prior to the earliest of (i) the Close of Business on March 9, 2009 (the
"Final Expiration Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"), or (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof.
b. The Purchase Price for each one one-hundredth of a Preferred Share
purchasable pursuant to the exercise of a Right shall initially be $55.00,
and shall be subject to adjustment from time to time as provided in Section
11 or 13 hereof, and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below.
c. Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase 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 or money order payable to the order of the Company,
the Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased and the Company hereby irrevocably
authorizes any such transfer agent to comply with all such requests, or (B)
requisition from the depositary agent for the Preferred Shares depositary
receipts representing such number of one one-hundredths of a Preferred Share
as are to be purchased (in which case certificates for the Preferred Shares
represented by such receipts shall be deposited by the transfer agent of the
Preferred Shares with such depositary agent) and the Company hereby directs
such depositary agent to comply with such request; (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14 hereof, (iii)
promptly after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by
such holder; and (iv) when appropriate, after receipt, promptly deliver such
cash to or upon the order of the registered holder of such Right Certificate.
d. In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent to registered holder of such Right Certificate or
to such holder's duly authorized assigns, subject to the provisions of
Section 14 hereof.
e. Notwithstanding any provision of this Rights Agreement to the
contrary, no Rights shall be exercisable by the holder thereof for a number
of Common Shares in excess of the maximum number of Common Shares that could
be acquired by the holder of such Right without violating any provision of
Article VI of the Declaration of Trust of the Company (or any successor
provision or document), relating to limitations on the ownership of Common
Shares. Any holder who exercises a Right for a number of Common Shares that
violates the preceding sentence shall be deemed never to have had an interest
in the excess Common Shares purportedly purchased upon such exercise. The
Board of Trustees shall have the power to take such actions as it deems
necessary or appropriate to administer the provisions of this Section 7(e).
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 cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, an no
Right Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights
Agent shall so cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such cancelled Right
Certificates, and, in such case, shall deliver a certificate of destruction
thereof to the Company.
Section 9. Availability of Preferred Shares. (a) The Company
covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held
in its treasury the number of Preferred Shares that will be sufficient to
permit the exercise in full of all outstanding Rights in accordance with
Section 7 hereof.
(b) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Preferred Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
such Preferred Shares (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and nonassessable shares.
(c) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right
Certificates or of any Preferred Shares upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right Certificates to a
Person other than, or the issuance or delivery of certificates or depositary
receipts for the Preferred Shares in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or to deliver any certificates or depositary receipts
for Preferred Shares upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company' s reasonable satisfaction that no such tax is due.
(d) So long as the Preferred Shares issuable and deliverable upon the
exercise of the Rights are eligible to be listed on any national securities
exchange, the Company shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all Preferred Shares reserved for
such issuance to be listed on such exchange upon official notice of issuance
upon such exercise.
(e) The Company shall use its reasonable best efforts to (i) file, as
soon as practicable following the earliest date after the first occurrence of
an event set forth in Section 11(a)(ii) on which the consideration to be
delivered by the Company upon exercise of the Rights has been determined in
accordance with Section 11(a)(iii) hereof, a registration statement under the
Securities, 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 Securities 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 Redemption Date and the Final
Expiration Date. 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. The Company may temporarily suspend, for a period of time not to
exceed one hundred and twenty (120) days after the date set forth in clause
(i) of the first sentence of this Section 9(e), the exercisability of the
Rights in order to prepare and file such registration statement and permit it
to become effective. Upon any such suspension, the Company shall make a
public announcement, and shall deliver to the Rights Agent a statement,
stating that the exercisability of the Rights has been temporarily suspended.
At such time as the suspension is no longer in effect, the Company shall make
another public announcement, and shall deliver to the Rights Agent a
statement so stating. In addition, if the Company shall determine that a
registration statement is required following the Distribution Date, the
Company may temporarily suspend the exercisability of the Rights until such
time as a registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification
in such jurisdiction shall not have been obtained, the exercise thereof shall
not be permitted under applicable law or a registration statement shall not
have been declared effective. Absent written notification from the Company
to the Rights Agent to the contrary, the Rights Agent may assume that any
Right exercised is permitted to be exercised under applicable law and, except
as otherwise provided hereunder in the case of the Rights Agent's gross
negligence, bad faith or willful misconduct, the Rights Agent shall have no
liability for acting in reliance upon such assumption.
Section 10. Preferred Shares Record Date. Each Person in whose name
any certificate for Preferred Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Preferred Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; provided, however, that, if the date of such surrender and
payment is a date upon which the Preferred Shares 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, the next
succeeding Business Day on which the Preferred Shares transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any rights of a holder
of Preferred Shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive distributions or to
exercise any preemptive rights, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number of Preferred Shares covered by each
Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
a. i. In the event the Company shall at any time after the date of
this Agreement (A) declare a distribution on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares or
(D) issue any shares of beneficial interest in a reclassification of the
Preferred Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the
Purchase Price in effect at the time of the record date for such distribution
or of the effective date of such subdivision, combination or
reclassification, and the number of units of one one-hundredths of a
Preferred Share and the number and kind of shares of beneficial interest
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number of units of one one-hundredths of a Preferred Share and the
number and kind of shares of beneficial interest which, if such Right had
been exercised immediately prior to such date and at a time when the
Preferred Shares transfer books of the Company were open, such holder would
have owned upon such exercise and been entitled to receive by virtue of such
distribution, subdivision, combination or reclassification; provided, how-
ever, that in no event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the shares of beneficial
interest of the Company issuable upon exercise of one Right. If an event
occurs which would require an adjustment under both Section 11(a)(i) and
Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall
be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
ii. Subject to the following paragraph of this subparagraph (ii)
and to Section 24 hereof, in the event any Person becomes an Acquiring
Person, each holder of a Right shall thereafter have a right to receive, upon
exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which
a Right is then exercisable, in accordance with the terms of this Agreement
and in lieu of Preferred Shares, such number of Common Shares of the Company
as shall equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable and dividing that product by (B) 50% of the
then current per share market-price of the Common Shares of the Company
(determined pursuant to Section 11(d) hereof) on the date of the occurrence
of such event. In the event that any Person shall become an Acquiring Person
and the Rights shall then be outstanding, the Company shall not take any
action which would eliminate or diminish the benefits intended to be afforded
by the Rights.
From and after the occurrence of such event, any Rights that are or were
acquired or beneficially owned by any Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be void, and any holder of such
Rights shall thereafter have no right to exercise such Rights under any
provision of this Agreement. 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 void
pursuant to the preceding sentence; no Right Certificate shall be issued at
any time upon the transfer of any Rights to an Acquiring Person, or any
Associate or Affiliate thereof, whose Rights would be void pursuant to the
preceding sentence 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 any Associate or Affiliate thereof, whose
Rights would be void pursuant to the preceding sentence shall be void and
cancelled without any action on the part of the Company.
iii. In the event that there shall not be sufficient Common Shares
of the Company issued but not outstanding or authorized but unissued to
permit the exercise in full of the Rights in accordance with subparagraph
(ii) above, the Company shall take all such action as may be necessary to
authorize additional Common Shares of the Company for issuance upon exercise
of the Rights. In the event the Company shall, after good faith effort, be
unable to take all such action as may be necessary to authorize such
additional Common Shares, the Company shall substitute, for each Common Share
of the Company that would otherwise be issuable upon exercise of a Right, a
number of Preferred Shares or fraction thereof such that the current per
share market price of one Preferred Share multiplied by such number or
fraction is equal to the current per share market price of one Common Share
of the Company as of the date of issuance of such Preferred Shares or
fraction thereof.
b. In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent preferred share
(or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current
per share market price of the Preferred Shares (as defined in Section 11(d))
on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of Preferred Shares outstanding on such record date plus
the number of Preferred Shares which the aggregate offering price of the
total number of Preferred Shares and/or equivalent preferred 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 market price and
the denominator of which shall be the number of Preferred Shares outstanding
on such record date plus the number of additional Preferred Shares and/or
equivalent preferred shares to be offered for subscription or purchase (or
into which the convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value
of the shares of beneficial interest of the Company issuable upon exercise of
one Right. 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
of the Company, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent and holders of
the Rights. Preferred 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 Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
c. In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred 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 or assets (other than a regular quarterly cash distribution or a
distribution payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the then current per share market price of
the Preferred Shares on such record date, less the fair market value (as
determined in good faith by the Board of Trustees of the Company, whose
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and holders of the Rights) of the
portion of the assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preferred Share and
the denominator of which shall be such then current per share market price of
the Preferred Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of the Company to be issued upon exercise
of one Right. Such adjustments shall be made successively whenever such a
record date is fixed; and, in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
d. i. For the purpose of any computation hereunder, the "current per
share market price" of any security (a "Security" for the purpose of this
Section 11(d)(i)) on any data shall be deemed to be the average of the daily
closing prices per share of such Security for the 30 consecutive Trading Days
immediately prior to such date; provided, however, that, in the event that
the current per share market price of the Security is determined during a
period following the announcement by the issuer of such Security of (A) a
distribution on such Security payable in shares of such Security or
Securities convertible into such shares, or (B) any subdivision, combination
or reclassification of such Security and prior to the expiration of 30
Trading Days after the ex-distribution date for such distribution, or the
record date for such subdivision, combination or reclassification, then, and
in each such case, the current per share market price shall be appropriately
adjusted to reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case, as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if the Security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use, or, if on any such date the Security
is not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in
the Security selected by the Board of Trustees of the Company. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for
the transaction of business, or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day. If the Security
is not publicly listed or traded, "current market price" shall mean the fair
value per share as determined in good faith by the Board of Trustees of the
Company, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the holders of the
Rights.
ii. For the purpose of any computation hereunder, the "current per
share market price" of the Preferred Shares shall be determined in accordance
with the method set forth in Section 11(d)(i) (other than the last sentence
thereof). If the current market price per Preferred Share (or one one-
hundreth of a Preferred Share) cannot be determined in the manner provided
above or if the Preferred Shares are not publicly traded, the "current per
share market price" of the Preferred Shares shall be conclusively deemed to
be the current per share market price of the Common Shares of the Company as
determined pursuant to Section 11(d)(i) hereof (appropriately adjusted to
reflect any share split, share distribution or similar transaction occurring
after the date hereof), multiplied by one hundred, and the "current market
price" per one one-hundredth of a Preferred Share shall be equal to the
current market price per share of the Common Shares (as appropriately
adjusted). If neither the Common Shares of the Company nor the Preferred
Shares are publicly held or so listed or traded, "current per share market
price" shall mean the fair value per share as determined in good faith by the
Board of Trustees of the Company, whose determination shall be described in a
statement filed with the Rights Agent and the holders of the Rights and shall
be binding on the Rights Agent and the holders of the Rights.
e. No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one-millionth
of a Preferred Share or one ten-thousandth of any other share or security as
the case may be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction which requires
such adjustment or (ii) the date of the expiration of the right to exercise
any Rights.
f. If, as a result of an adjustment made pursuant to Section 11 (a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of the Company other than Preferred Shares, thereafter the
number of such other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred
Shares contained in Section 11(a) through (c) hereof, inclusive, and the
provisions of Sections 7, 9, 10 and 13 hereof with respect to the Preferred
Shares shall apply on like terms to any such other shares.
g. All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of
a Preferred Share purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
h. Unless the Company shall have exercised its election as provided in
Section 11(i) hereof, upon each adjustment of the Purchase Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a Preferred Share (calculated to the
nearest one one-millionth of a Preferred Share) obtained by (A) multiplying
(x) the number of one one-hundredths of a share covered by a Right
immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (B) dividing
the product so obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.
i. The Company may elect, on or after the date of any adjustment of
the Purchase Price, to adjust the number of Rights in substitution for any
adjustment in the number of one one-hundredths of a Preferred 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 one one-hundredths of a Preferred 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 (calculated to the nearest one ten-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of the
Purchase Price. The 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 Purchase 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 Right Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section 11(i), 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 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 the manner provided for
herein, and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
j. Irrespective of any adjustment or change in the Purchase Price or
in the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the number of one one-
hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.
k. Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any, of
the Preferred Shares issuable upon exercise of the Rights, the Company shall
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 nonassessable Preferred Shares at such adjusted Purchase Price.
l. In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
of the Preferred Shares and other shares of beneficial interest or securities
of the Company, if any, issuable upon such exercise over and above the
Preferred Shares and other shares or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver
to such holder a due xxxx or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
m. Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and
to the extent that it, in its sole discretion, shall determine to be
advisable in order that any consolidation or subdivision of the Preferred
Shares, issuance wholly for cash of any Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or exchangeable for
Preferred Shares, distributions on Preferred Shares payable in Preferred
Shares or issuance of rights, options or warrants referred to in Section
11(b) hereof, hereafter made by the Company to holders of the Preferred
Shares shall not be taxable to such shareholders.
n. Anything in this Agreement to the contrary notwithstanding, in the
event that, at any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) authorize, declare or pay any
distribution on the Common Shares of the Company payable in Common Shares of
the Company, or (ii) effect a subdivision, combination or consolidation of
the Common Shares of the Company (by reclassification or otherwise than by
payment of distributions in Common Shares of the Company) into a greater or
lesser number of Common Shares of the Company, then, in any such case, (A)
the number of one one-hundredths of a Preferred Share purchasable after such
event upon proper exercise of each Right shall be determined by multiplying
the number of one one-hundredths of a Preferred Share so purchasable
immediately prior to such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such event and the
denominator of which is the number of Common Shares outstanding immediately
after such event, and (B) each Common Share outstanding immediately after
such event shall have issued with respect to it that number of Rights which
each Common Share outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section 11(n) shall be
made successively whenever such a distribution is authorized, declared or
paid or such a subdivision, combination or consolidation is effected.
(o) Notwithstanding any other provision of this Agreement, no
adjustment to the Purchase Price, the number of Preferred Shares (or
fractions of a Preferred Share), Common Shares or other securities for which
a Right is exercisable or the number of Rights outstanding or any similar
adjustment shall be made or be effective if such adjustment would have the
effect of reducing or limiting the benefits the holders of the Rights would
have had absent such adjustment, including, without limitation, the benefits
under Section 11(a)(ii) and Section 13, unless the terms of this Agreement
are amended so as to preserve such benefits.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or 13
hereof, the Company shall promptly (a) prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Shares of the Company or the Preferred Shares a copy of such
certificate and (c) if such adjustment occurs at any time after the
Distribution Date, mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, at any time after a
Person has become an Acquiring Person, (a) the Company shall consolidate
with, or merge with and into, any other Person, (b) any Person shall
consolidate with the Company, or 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 Common Shares of the
Company shall be changed into or exchanged for stock or other securities of
any other Person (or the Company) or cash or any other property, or (c) the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person other
than the Company or one or more of its wholly-owned Subsidiaries, then, and
in each such case, proper provision shall be made so that (i) each holder of
a Right (except as otherwise provided herein) shall thereafter have the right
to receive, upon the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable, in accordance with the terms of
this Agreement and in lieu of Preferred Shares, such number of Common Shares
of such other Person (including the Company as successor thereto or as the
surviving corporation) as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to Section 11(d) hereof) on
the date of consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Shares shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Company pursuant to this Agreement; (iii)
the term "Company" shall thereafter be deemed to refer to such issuer; and
(iv) such issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in accordance with
Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to the Common Shares of the Company
thereafter deliverable upon the exercise of the Rights. The Company shall
not consummate any such consolidation, merger, sale or transfer unless, prior
thereto, the Company and such issuer shall have executed and delivered to the
Rights Agent a supplemental agreement so providing. The Company shall not
enter into any transaction of the kind referred to in this Section 13 if at
the time of such transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which, as a result
of the consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The provisions
of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares. a. The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the "current
market value" of a whole Right shall be the closing price of the Rights for
the Trading Day immediately prior to the date on which such fractional Rights
would have been otherwise issuable. The "closing price" for any day shall be
the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case, as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the Rights are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then in use or, if
on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Trustees
of the Company. If on any such date no such market maker is making a market
in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Trustees of the Company shall be used and shall be
binding on the Rights Agent and the holders of the Rights.
b. The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-
hundredth of a Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other than fractions
which are integral multiples of one one-hundredth of a Preferred Share).
Fractions of Preferred Shares in integral multiples of one one-hundredth of a
Preferred Share may, at the election of the Company, be evidenced by
depositary receipts, 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 the rights,
privileges and preferences to which they are entitled as beneficial owners of
the Preferred Shares represented by such depositary receipts. In lieu of
fractional Preferred Shares that are not integral multiples of one one-
hundredth of a Preferred Share, the Company shall pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Preferred Share. For the purposes of this Section 14(b), the
current market value of a Preferred Share shall be the closing price of a
Preferred Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such
exercise.
c. The holder of a Right, by the acceptance of the Right, expressly
waives such holder's right to receive any fractional Rights or any fractional
shares upon exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares of the Company); and any registered holder of
any Right Certificate (or, prior to the Distribution Date, of the Common
Shares of the Company), without the consent of the Rights Agent or of the
holder of any other Right Certificate (or, prior to the Distribution Date, of
the Common Shares of the Company), may, on such holder's own behalf and for
such holder's own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in
respect of, such holder's right to exercise the Rights evidenced by such
Right Certificate in the manner provided in such Right Certificate and in
this Agreement. Without limiting the foregoing or any remedies available to
the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this
Agreement, and will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened violations of the
obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
a. prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares of the Company;
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;
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 Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificate or the associated Common Shares
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; and
d. notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Rights Agent shall have any liability to any holder of a
Right or any other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority, prohibiting or otherwise
restraining performance of such obligation; provided, however, the Company
must use its commercially reasonable efforts to have any such order, decree
or ruling lifted or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
distributions or be deemed for any purpose the holder of the Preferred Shares
or any other securities of the Company 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 25 hereof), or
to receive distributions or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been exercised
in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The 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 Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent, and its directors, officers, employees and agents, for, and
to hold each of them harmless against, any loss, liability, or expense,
incurred without negligence, bad faith or willful misconduct on the part of
the Rights Agent or such other indemnified party, for anything done or
omitted by the Rights Agent or such other indemnified party in connection
with the acceptance and administration of this Agreement, or in the exercise
or performance of its duties hereunder, including the costs and expenses of
defending against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no liability for, or
in respect of any action taken, suffered or omitted by it in connection with,
its administration of this Agreement or the exercise or performance of its
duties hereunder in reliance upon any Right Certificate or certificate for
the Preferred Shares or Common 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 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, or otherwise upon the advice of counsel as set forth in Section
20 hereof.
The indemnity provided in this Section 18 shall survive the expiration
of the Rights and the termination of this Agreement.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
share transfer or corporate trust powers of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties hereto; provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so countersigned; and, in
case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor 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 Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and, in case at that
time any of the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in its prior name
or in its changed name; and, in all such cases, such Right Certificates shall
have the full force provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this 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:
a. The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the written advice or 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 written advice or opinion.
b. Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter 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 any one of the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Treasurer
or the Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
c. The Rights Agent shall be liable hereunder to the Company and any
other Person only for its own negligence, bad faith or willful misconduct.
d. The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the 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 any provision of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant to
Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in this
Agreement, or the ascertaining of the existence of facts that would require
any such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred 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 this Agreement.
g. The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, 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 by it
in good faith in accordance with instructions of any such officer or for any
delay in acting while waiting for those instructions.
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 lend money to the
Company or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other capacity for the 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 that 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 Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares of the Company or Preferred Shares
by registered or certified mail, and to the holders of the Right Certificates
by first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent 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 Common Shares of the Company or Preferred Shares by registered
or certified mail, and to the holders of the Right Certificates by first-
class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
to the Rights Agent. Notwithstanding the foregoing provisions of this
Section 21, in no event shall the resignation or retirement 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 giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (which holder shall, with such notice, submit such holder's Right
Certificate for inspection by the Company), then the registered holder of any
Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the State of
Ohio (or of any other state of the United States so long as such corporation
is authorized to do business as a banking institution in the State of Ohio),
in good standing, having an office in the State of Ohio, which is authorized
under such laws to exercise corporate trust or share transfer powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and responsibili-
ties 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 Common Shares of the Company or
Preferred 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 the 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.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by the Board of Trustees of the Company to
reflect any adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption. a. The Board of Trustees of the Company
may, at its option, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all of the then outstanding
Rights at a redemption price of $.01 per Right, appropriately adjusted to
reflect any share split, share distribution or similar transaction occurring
after the date hereof (such redemption price being hereinafter referred to as
the "Redemption Price"). The redemption of the Rights by the Board of
Trustees of the Company may be made effective at such time, on such basis and
with such conditions as the Board of Trustees of the Company, in its sole
discretion, may establish.
b. Immediately upon the action of the Board of Trustees of the Company
ordering the redemption of the Rights pursuant to paragraph (a) of this
Section 23, and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The Company
shall promptly give public notice of any such redemption; provided, however,
that the failure to give, or any defect in, any such notice shall not affect
the validity of such redemption. Within 10 days after such action of the
Board of Trustees of the Company ordering the redemption of the Rights, the
Company shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares of the Company. Any notice
which is mailed in the manner herein provided shall be deemed given, whether
or not the holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be made.
Neither the Company nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any manner other than
that specifically set forth in this Section 23 or in Section 24 hereof, and
other than in connection with the purchase of Common Shares of the Company
prior to the Distribution Date.
Section 24. Exchange. a. The Board of Trustees of the Company may,
at its option, by resolution adopted at any time after any Person becomes an
Acquiring Person, provide that the Company shall exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Shares of the Company at an exchange ratio of one Common Share of the
Company per Right, appropriately adjusted to reflect any adjustment in the
number of Rights pursuant to Section 11(i) (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Trustees of the Company shall not be empowered to
effect such exchange at any time after any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or
any such Subsidiary, any entity holding Common Shares for or pursuant to the
terms of any such plan), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of (i) the aggregate
voting power of the Company's voting securities or (ii) the Common Shares of
the Company then outstanding.
b. Immediately upon the action of the Board of Trustees of the Company
ordering the exchange of any Rights pursuant to paragraph (a) of this Section
24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Common Shares of the
Company 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 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
Common Shares of the Company for Rights will be effected, and, in the event
of any partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
c. In the event that there shall not be sufficient Common Shares of
the Company issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24,
the Company shall take all such action as may be necessary to authorize
additional Common Shares of the Company for issuance upon exchange of the
Rights. In the event the Company shall, after good faith effort, be unable
to take all such action as may be necessary to authorize such additional
Common Shares of the Company, the Company shall substitute, for each Common
Share of the Company that would otherwise be issuable upon exchange of a
Right, a number of Preferred Shares or fraction thereof such that the current
per share market price of one Preferred Share multiplied by such number or
fraction is equal to the current per share market price of one Common Share
as of the date of issuance of such Preferred Shares or fraction thereof.
d. The Company shall not be required to issue fractions of Common
Shares of the Company or to distribute certificates which evidence fractional
Common Shares of the Company. In lieu of such fractional Common Shares of
the Company, the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional Common Shares of the
Company would otherwise be issuable an amount in cash equal to the same
fraction of the current market value of a whole Common Share of the Company.
For the purposes of this paragraph (d), the "current market value" of a whole
Common Share of the Company shall be the closing price of a Common Share of
the Company (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. a. In case the Company shall,
at any time after the Distribution Date, propose (i) to pay any distribution
payable in shares of any class to the holders of the Preferred Shares or to
make any other distribution to the holders of the Preferred Shares (other
than a regular quarterly cash distribution), (ii) to offer to the holders of
the Preferred Shares rights or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of any class or any other securities,
rights or options, (iii) to effect any reclassification of the Preferred
Shares (other than a reclassification involving only the subdivision of
outstanding Preferred Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or
more of its Subsidiaries to effect any sale or other transfer), in one or
more transactions, of 50% or more of the assets or earning power of the Com-
pany and its Subsidiaries (taken as a whole) to, any other Person, (v) to
effect the liquidation, dissolution or winding up of the Company, or (vi) to
declare or pay any distribution on the Common Shares of the Company payable
in Common Shares of the Company or to effect a subdivision, combination or
consolidation of the Common Shares of the Company (by reclassification or
otherwise than by payment of distributions in Common Shares of the Company),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such share
distribution, or distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares of the Company and/or Preferred
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 the Preferred 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
of participation therein by the holders of the Common Shares of the Company
and/or Preferred Shares, whichever shall be the earlier.
b. In case the event set forth in Section 11(a)(ii) hereof shall
occur, then the Company shall, as soon as practicable thereafter, give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the 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:
Glimcher Realty Trust
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid, ad-
dressed (until another address is filed in writing with the Company) as
follows:
The Xxxxxx Trust and Savings Bank
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Company.
Section 27. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the approval of any holders
of Right Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other
provisions with respect to the Rights which the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing
signed by the Company and the Rights Agent; provided, however, that, from and
after such time as any Person becomes an Acquiring Person, this Agreement
shall not be amended in any manner which would adversely affect the interests
of the holders of Rights (other than an Acquiring Person and its Affiliates
and Associates), and provided, further, that no supplement or amendment that
changes the rights or duties of the Rights Agent under this Agreement shall
be effective without the consent of the Rights Agent. Without limiting the
foregoing, the Company may at any time prior to such time as any Person
becomes an Acquiring Person amend this Agreement to lower the thresholds set
forth in Sections 1(a) and 3(a) hereof to not less than the greater of (a)
the sum of .001% and the largest percentage of the outstanding Common Shares
then known by the Company to be beneficially owned by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company, any entity holding Common Shares
for or pursuant to the terms of any such plan) and (b) 10%.
Section 28. Successors. All the covenants and provisions of this
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 Agreement. Nothing in this 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 Common Shares of the Company) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for
the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares of the Company).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invali-
dated.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Maryland and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Headings. Descriptive headings of the several Sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section 34. Determinations and Actions by the Board of Trustees. The
Board of Trustees of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Trustees or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power (i) to interpret the provisions of
this Agreement, and (ii) to make all determinations deemed necessary or
advisable for the administration of this Agreement, including, without
limitation, a determination to redeem or not redeem the Rights or to amend
this Agreement and whether any proposed amendment adversely affects the
interests of the holders of the Rights Certificates. All such actions,
calculations, interpretations and determinations (including, for purposes of
clause (y) below, all omissions with respect to the foregoing) which are done
or made by the Board of Trustees of the Company in good faith shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders
of the Rights and all other parties, and (y) not subject the Board of
Trustees of the Company or any member thereof to any liability to the holders
of the Rights.
Section 35. Trust Provision. This Agreement and all documents,
agreements, undertakings 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 Declaration of
Trust of Glimcher Realty Trust, 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 transaction shall be deemed and treated to include in all
respects and for all purposes the foregoing exculpatory provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
Attest: GLIMCHER REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President Title: Chairman, President and
and General Counsel Chief Executive Officer
Attest: THE XXXXXX TRUST AND SAVINGS BANK
By By/s/ Xxxxxxx X. Xxxx
------------------------ --------------------------------
Name: Name: Xxxxxxx X. Xxxx
Title: Title: Vice President
Exhibit A
GLIMCHER REALTY TRUST
FORM
of
ARTICLES SUPPLEMENTARY
for
Series E Junior Participating Preferred Shares of Beneficial Interest
(Pursuant to Section 8 -203(b) of the
Corporations and Associations Article
of the Annotated Code of Maryland)
_____________________________
Glimcher Realty Trust, a real estate investment trust organized and
existing under the laws of the State of Maryland (the "Company"), and having
its executive office at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 hereby
certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority granted to and vested in the Board of
Trustees of the Company (the "Board of Trustees") by the Amended and Restated
Declaration of Trust of the Company, dated November 1, 1993, as amended (the
"Declaration of Trust"), the Board of Trustees, at a meeting duly called and
held on March __, 1999, adopted resolutions (the "Resolutions ") authorizing
and establishing a separate class of preferred shares of beneficial interest,
out of the ___________ authorized shares of beneficial interest of the
Company (the "Shares "), consisting of________ shares to be known as the
"Series E Junior Participating Preferred Shares of Beneficial Interest" (the
"Series E Junior Participating Preferred Shares"). Such Series E Junior
Participating Preferred Shares shall have a par value of $.01 per share and
shall have the preferences, conversion and other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption as follows, which upon any restatement of the
Declaration of Trust shall be made part of Article VI thereof, with any
necessary or appropriate changes to the enumeration or lettering of sections
or subsections thereof.
Series E Junior Participating Preferred Shares:
Section 1. Designation and Amount. The shares of the series of
preferred shares established hereunder shall be known as Series E Junior
Participating Preferred Shares and the number of shares constituting the
Series E Junior Participating Preferred Shares shall be _________. Such
number of shares may be increased or decreased by resolution of the Board of
Trustees and by the filing of articles supplementary in accordance with the
Corporations and Associations Article of the Annotated Code of Maryland;
provided, that no decrease shall reduce the number of shares of Series E
Junior Participating Preferred Shares to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Company convertible
into Series E Junior Participating Preferred Shares.
Section 2. Distributions.
(1) Subject to the rights of the holders of any shares of any
series of Preferred Shares (or any similar shares) ranking prior and
superior to the Series E Junior Participating Preferred Shares with
respect to distributions, the holders of the Series E Junior
Participating Preferred Shares, in preference to the holders of Common
Shares of Beneficial Interest, par value $.01 per share (the "Common
Shares"), of the Company, and of any other junior shares, shall be
entitled to receive, when, as and if authorized by the Board of Trustees
out of funds legally available for the purpose, quarterly distributions
payable in cash on the first day of [March, June, September and
December] in each year (each such date being referred to herein as a
"Quarterly Distribution Payment Date"), commencing on the first
Quarterly Distribution Payment Date after the first issuance of a Series
E Junior Participating Preferred Share or fraction of a Series E Junior
Participating Preferred Share, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash distributions, and 100 times the aggregate
per share amount (payable in kind) of all non-cash distributions or
other distributions, other than a distribution payable in Common Shares
or a subdivision of the outstanding Common Shares (by reclassification
or otherwise), declared on the Common Shares since the immediately
preceding Quarterly Distribution Payment Date or, with respect to the
first Quarterly Distribution Payment Date, since the first issuance of a
Series E Junior Participating Preferred Share or any fraction of a
Series E Junior Participating Preferred Share. In the event the Company
shall at any time declare or pay any distribution on the Common Shares
payable in Common Shares, or effect a subdivision or combination or con-
solidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a distribution in Common Shares) into a
greater or lesser number of Common Shares, then in each such case the
amount to which holders of Series E Junior Participating Preferred
Shares were entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is
the number of Common Shares that were outstanding immediately prior to
such event.
(2) The Company shall declare a distribution on the Series E
Junior Participating Preferred Shares as provided in paragraph (A) of
this Section immediately after it declares a distribution on the Common
Shares (other than a distribution payable in Common Shares); provided
that, in the event no distribution shall have been declared on the
Common Shares during the period between any Quarterly Distribution
Payment Date and the next subsequent Quarterly Distribution Payment
Date, a distribution of $1 per share on the Series E Junior
Participating Preferred Shares shall nevertheless be payable on such
subsequent Quarterly Distribution Payment Date.
(3) Distributions shall begin to accrue and be cumulative on
outstanding Series E Junior Participating Preferred Shares from the
Quarterly Distribution Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Distribution Payment Date, in which
case distributions on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Distribution Payment Date or is a date after the record date for the
determination of holders of Series E Junior Participating Preferred
Shares entitled to receive a quarterly distribution and before such
Quarterly Distribution Payment Date, in either of which events such
distributions shall begin to accrue and be cumulative from such
Quarterly Distribution Payment Date. Accrued but unpaid distributions
shall not bear interest. Distributions paid on the Series E Junior
Participating Preferred Shares in an amount less than the total amount
of such distributions at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Trustees may fix a record
date for the determination of holders of Series E Junior Participating
Preferred Shares entitled to receive payment of a distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof
Section 3. Voting Rights. The holders of Series E Junior
Participating Preferred Shares shall have the following voting rights:
(1) Subject to the provision for adjustment hereinafter set forth,
each Series E Junior Participating Preferred Share shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Company. In the event the Company shall at any time
declare or pay any distribution on the Common Shares payable in Common
Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by
payment of a distribution in Common Shares) into a greater or lesser
number of Common Shares, then in each such case the number of votes per
share to which holders of Series E Junior Participating Preferred Shares
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(2) Except as otherwise provided herein, and in the terms of any
other series of Preferred Shares or any similar shares, the holders of
Series E Junior Participating Preferred Shares and the holders of Common
Shares and any other shares of the Company having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareholders of the Company.
(3) Except as set forth herein, holders of Series E Junior
Participating Preferred Shares shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Shares as set forth herein) for
taking any company action.
Section 4. Certain Restrictions.
(1) Whenever quarterly distributions or other distributions
payable on the Series E Junior Participating Preferred Shares as
provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid distributions, whether or not declared, on Series E Junior
Participating Preferred Shares outstanding shall have been paid in full,
the Company shall not:
i. declare or pay distributions on any shares ranking junior
(either as to distributions or upon liquidation, dissolution or
winding up) to the Series E Junior Participating Preferred Shares;
ii. declare or pay distributions on any shares ranking on a
parity (either as to distributions or upon liquidation, dissolution
or winding up) with the Series E Junior Participating Preferred
Shares, except distributions paid ratably on the Series E Junior
Participating Preferred Shares and all such parity shares on which
distributions are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
iii. redeem or purchase or otherwise acquire for consideration
any shares ranking junior (either as to distributions or upon
liquidation, dissolution or winding up) to the Series E Junior
Participating Preferred Shares, provided that the Company may at
any time redeem, purchase or otherwise acquire any such junior
shares in exchange for any shares of the Company ranking junior
(either as to distributions or upon dissolution, liquidation or
winding up) to the Series E Junior Participating Preferred Shares;
or
iv. redeem or purchase or otherwise acquire for consideration
any Series E Junior Participating Preferred Shares, or any shares
ranking on a parity with the Series E Junior Participating
Preferred Shares, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board of
Trustees) to all holders of such shares upon such terms as the
Board of Trustees, after consideration of the respective annual
distribution rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series
or classes.
(2) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any Series E Junior Participating
Preferred Shares purchased or otherwise acquired by the Company in any manner
whatsoever shall become authorized but unissued Preferred Shares and may be
reissued as part of a new series of Preferred Shares subject to the
conditions and restrictions on issuance set forth herein, in the Declaration
of Trust, or in any other articles supplementary creating a series of
Preferred Shares or any similar shares or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall
be made (1) to the holders of shares ranking junior (either as to
distributions or upon liquidation, dissolution or winding up) to the Series E
Junior Participating Preferred Shares unless, prior thereto, the holders of
Series E Junior Participating Preferred Shares shall have received $100 per
share, plus an amount equal to accrued and unpaid distributions thereon,
whether or not declared, to the date of such payment, provided that the
holders of Series E Junior Participating Preferred Shares shall be entitled
to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Shares, or (2) to the holders
of shares ranking on a parity (either as to distributions or upon liquida-
tion, dissolution or winding up) with the Series E Junior Participating
Preferred Shares, except distributions made ratably on the Series E Junior
Participating Preferred Shares and all such parity shares in proportion to
the total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up. In the event the Company shall
at any time declare or pay any distribution on the Common Shares payable in
Common Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment
of a distribution in Common Shares) into a greater or lesser number of Common
Shares, then in each such case the aggregate amount to which holders of
Series E Junior Participating Preferred Shares were entitled immediately
prior to such event under the provision clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the Common Shares are exchanged for or changed into other shares or
securities, cash and/or any other property, then in any such case each Series
E Junior Participating Preferred Share shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
shares, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each Common Share is changed or
exchanged. In the event the Company shall at any time declare or pay any
distribution on the Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common Shares
(by reclassification or otherwise than by payment of a distribution in Common
Shares) into a greater or lesser number of Common Shares, then in each such
case the amount set forth in the preceding sentence with respect to the
exchange or change of Series E Junior Participating Preferred Shares shall be
adjusted by multiplying such amount by a fraction, the numerator of which is
the number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Section 8. No Redemption. The Series E Junior Participating
Preferred Shares shall not be redeemable.
Section 9. Rank. The Series E Junior Participating Preferred Shares
shall rank, with respect to the payment of distributions and the distribution
of assets, junior to all series of the Company's Preferred Shares.
Section 10. Amendment. The Declaration of Trust shall not be amended
in any manner which would materially alter or change the preferences, voting
power or other rights or restrictions of the Series E Junior Participating
Preferred Shares, as set forth herein, so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
Series E Junior Participating Preferred Shares, voting together as a single
class.
SECOND: The Shares have been classified and designated by the Board of
Trustees under the authority contained in the Declaration of Trust.
THIRD: These Articles Supplementary have been approved by the Board of
Trustees in the manner and by the vote required by law.
FOURTH: The undersigned Chairman of the Board, President and Chief
Executive Officer of the Company acknowledges these Articles Supplementary to
be the act of the Company and, as to all matters or facts required to be
verified under oath, the undersigned Chairman, President and Chief Executive
Officer acknowledges that to the best of his knowledge, information and
belief, these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Company has caused these Articles Supplementary
to be executed under seal in its name on its behalf by its Chairman,
President and Chief Executive Officer and attested to by its Secretary on
this ___ day of March, 1999.
____________________________________
Chairman, President and Chief Executive Officer
Attest:
____________________________
Secretary
Exhibit B
Form of Right Certificate
Certificate No. R- ___Rights
NOT EXERCISABLE AFTER MARCH __, 2009 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS
SET FORTH IN THE AGREEMENT.
Right Certificate
GLIMCHER REALTY TRUST
This certifies that _____________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions
of the Agreement, dated as of March __, 1999 (the "Agreement"), between
Glimcher Realty Trust, a Maryland real estate investment trust (the
"Company"), and The Xxxxxx Trust and Savings Bank (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date (as such
term is defined in the Agreement) and prior to 5:00 P.M., Cleveland time, on
March __, 2009 at the principal office of the Rights Agent, or at the office
of its successor as Rights Agent, one one-hundredth of a fully paid non-
assessable Series E Junior Participating Preferred Share, par value $.01 per
share, of the Company (the "Preferred Shares"), at a purchase price of $__.00
per one one-hundredth of a Preferred Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of one one-hundredths of a Preferred Share
which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
_________, 199_, based on the Preferred Shares as constituted at such date.
As provided in the Agreement, the Purchase Price and the number of one one-
hundredths of a Preferred 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.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Agreement are on file at the principal executive office of the Company
and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred 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 Agreement, the Rights evidenced by this
Right Certificate (i) may be redeemed by the Company at a redemption price of
$.01 per Right or (ii) may be exchanged in whole or in part for Preferred
Shares or shares of the Company's Common Shares of Beneficial Interest, par
value $.01 per share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts), but, in lieu
thereof, a cash payment will be made, as provided in the Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
distributions or be deemed for any purpose the holder of the Preferred 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 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 action, or to receive notice
of meetings or other actions affecting shareholders (except as provided in
the Agreement), or to receive distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right Certificate
shall have been exercised as provided in the Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of __________, ________.
ATTEST: GLIMCHER REALTY TRUST
_______________________________ By_____________________________
Name: Name:
Title: Title:
Countersigned:
THE XXXXXX TRUST AND SAVINGS BANK
By_____________________________
Name:
Title:
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ____________________ hereby sells, assigns and
transfers unto _____________________________________________________________
____________________________________________________________________________
(Please print name and address of transferee)
____________________________________________________________________________
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________ Attorney, to
transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated:_____________________________
__________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
-----------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Agreement).
____________________________________
Signature
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: (________)
The undersigned hereby irrevocably elects to exercise _____________
Rights represented by this Right Certificate to purchase the Preferred Shares
issuable upon the exercise of such Rights and requests that certificates for
such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
-----------------------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
-----------------------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------------------
Dated:____________
___________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
-----------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Agreement).
_________________________________
Signature
-----------------------------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to Purchase,
as the case may be, must conform to the name as written upon the face of this
Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
In the event the certification set forth above in the Form of Assignment
or the Form of Election to Purchase, as the case may be, is not completed,
the Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Agreement) and such Assignment or
Election to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
Introduction
On March 9, 1999, the Board of Trustees of Glimcher Realty Trust (the
"Company") declared a distribution of one preferred share purchase right (a
"Right") for each outstanding common share of beneficial interest, par value
$.01 per share, of the Company (the "Common Shares"). The distribution is
payable on March 22, 1999 (the "Record Date") to the shareholders of record
at the close of business on that date. The description and terms of the
Rights are set forth in an Agreement (the "Agreement") between the Company
and The Xxxxxx Trust and Savings Bank, as Rights Agent (the "Rights Agent").
Purchase Price
Each Right entitles the registered holder to purchase from the Company
one onehundredth of a Series E Junior Participating Preferred Share of the
Company, par value $.01 per share (the "Preferred Shares"), at a price of
$55.00 per one one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment.
Flip-In
In the event that any person or group of affiliated or associated
persons (other than (a) the Company, (b) any subsidiary of the Company, (c)
any employee benefit plan of the Company or any subsidiary of the Company or
(d) any entity holding Common Shares for or pursuant to the terms of any such
plan acquires beneficial ownership of 15% or more of the outstanding Common
Shares (an "Acquiring Person"), each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void),
will thereafter have the right to receive upon exercise that number of Common
Shares having a market value of two times the Purchase Price of the Right;
provided, that no person shall become an Acquiring Person as the result of
(x) an acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate number of
Common Shares beneficially owned by such person to 15% or more of the
outstanding Common Shares or (y) the acquisition of all of his, her or its
Common Shares pursuant to any action or transaction or series of actions or
transactions approved by the Board of Trustees. Notwithstanding the
foregoing, a person who becomes the beneficial owner of 15% or more of the
Common Shares for either or both of the reasons set forth in subclauses (x)
and (y) shall be deemed an Acquiring Person if such person, without the prior
approval of the Board of Trustees, acquires any additional Common Shares.
Flip-Over
If the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are
sold after a person or group has become an Acquiring Person, each holder of a
Right (other than Rights beneficially owned by the Acquiring Person, which
will be void) will thereafter have the right to receive that number of shares
of common stock of the acquiring corporation which at the time of such
transaction will have a market value of two times the exercise price of the
Right.
Distribution Date
The Distribution Date is the earlier of
i. 10 days following the first to occur of (A) a public announcement
by the Company or an Acquiring Person that a person or group of affiliated or
associated persons have acquired beneficial ownership of 15% or more of the
outstanding Common Shares or (B) the public disclosure of facts by the
Company or an Acquiring Person indicating that an Acquiring Person has become
such; or
ii. 10 business days (or such later date as may be determined by action
of the Board of Trustees of the Company prior to such time as any person or
group of affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common
Shares.
Transfer and Detachment
Until the Distribution Date, the Rights will be evidenced, with respect
to any of the Common Share certificates outstanding as of the Record Date, by
such Common Share certificate with a copy of this Summary of Rights attached
thereto. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the Rights will be transferred with and only with the Common
Shares, and transfer of those certificates will also constitute transfer of
these Rights.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
Common Share Equivalents
On the Distribution Date, proper provision will be made by the Company
in order to provide each holder of shares of beneficial interest of the
Company (other than the holders of the Common Shares) which, pursuant to the
Company's Amended and Restated Declaration of Trust, dated as of November 1,
1993, as amended (the "Declaration of Trust"), would be entitled to receive
the Rights (such shares, the "Common Share Equivalents") with such number of
Rights, evidenced by Right Certificates, as would have been issued to such
holder had such holder exchanged such holder's shares of Common Share
Equivalents for Common Shares prior to the Distribution Date.
Partnership Units
On the Distribution Date, proper provision will be made by the Company
in order to provide each holder of partnership units of Glimcher Properties
Limited Partnership (the "Partnership") with such number of Rights, evidenced
by Right Certificates, as would have been issued to such holder had such
holder exchanged such holder's partnership units for Common Shares pursuant
to the terms and conditions of the Limited Partnership Agreement of the
Partnership prior to the Distribution Date.
Exercisability
The Rights are not exercisable until the Distribution Date. The Rights
will expire on March 9, 2009 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below. The Rights
Agreement provides that, notwithstanding anything to the contrary therein, no
Right will be exercisable for a number of Common Shares that would cause the
ownership limit set forth in the Company's Declaration of Trust to be
exceeded.
Adjustments
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of share
distributions, share splits, reclassifications, or certain distributions with
respect to the Preferred Shares. The number of outstanding Rights and the
number of one one-hundredths of a Preferred Share issuable upon exercise of
each Right are also subject to adjustment if, prior to the Distribution Date,
there is a share split of the Common Shares or a share distribution on the
Common Shares payable in Common Shares or subdivisions, consolidations or
combinations of the Common Shares. With certain exceptions, no adjustment in
the Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional Preferred
Shares will be issued (other than fractions which are integral multiples of
one one-hundredth of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
Preferred Shares
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly distribution payment of $1 per share but will be entitled to an
aggregate distribution of 100 times the distribution declared per Common
Share. In the event of liquidation, the holders of the Preferred Shares will
be entitled to a minimum preferential liquidation payment of $100 per share
but will be entitled to an aggregate payment of 100 times the payment made
per Common Share. Each Preferred Share will have 100 votes, voting together
with the Common Shares. Finally, in the event of any merger, consolidation
or other transaction in which Common Shares are exchanged, each Preferred
Share will be entitled to receive 100 times the amount received per Common
Share. These rights are protected by customary antidilution provisions.
The value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should, because of the nature of the
Preferred Shares' distribution, liquidation and voting rights, approximate
the value of one Common Share.
Exchange
At any time after any person or group becomes an Acquiring Person, and
prior to the acquisition by such person or group of 50% or more of the
outstanding Common Shares, the Board of Trustees of the Company may exchange
the Rights (other than Rights owned by the Acquiring Person, which will have
become void), in whole or in part, at an exchange ratio of one Common Share,
or one one-hundredth of a Preferred Share (subject to adjustment) per Right.
Redemption
At any time prior to any person or group becoming an Acquiring Person,
the Board of Trustees of the Company may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Trustees in its sole discretion may
establish. Immediately upon any 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.
Amendments
The terms of the Rights may be amended by the Board of Trustees of the
Company without the consent of the holders of the Rights, including an
amendment to lower certain thresholds described above to not less than the
greater of (i) the sum of . 001% and the largest percentage of the
outstanding Common Shares then known to the Company to be beneficially owned
by any person or group of affiliated or associated persons and (ii) 10%,
except that from and after such time as any person or group of affiliated or
associated persons becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Rights and Holders
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive distributions.
Further Information
A copy of the Agreement has been filed with the Securities and Exchange
Commission as an Exhibit to a Registration Statement on Form 8-A dated March
10, 1999. A copy of the 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 Agreement,
which is hereby incorporated herein by reference.
