UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 13, 1999
CENTURY REALTY TRUST
(Exact name of registrant as specified in its charter)
INDIANA 0-7716 35-1284316
(State or other jurisdiction (Commission (IRS Employer
incorporation) File Number) Identification No.)
823 Chamber of Commerce Building, Indianapolis, IN 46204
(Address of principal executive offices)
Registrant s telephone number, including area code: (317) 632-5467
Not applicable
(Former name or former address, if changed since last report)
ITEM 5. Other Events.
On September 13, 1999, the Board of Trustees of the registrant
adopted an amendment to the Rights Declaration, originally adopted
October 10, 1989, to extend the Rights Declaration to December 31, 2004,
and to set the Purchase Price for each share, pursuant to the exercise
of Right at $20.00 per share. The amendment is effective September 13,
1999.
ITEM 7. Financial Statements and Exhibits.
4(c) Exhibits.
4.1. Amendment No. 1 to Rights Declaration, adopted effective
September 13,1999.
4.2. Rights Declaration dated as of October 10,1989.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTURY REALTY TRUST
Date: September 17, 1999 By:
S/ John I. Bradshaw, Jr.
President
Date: September 17, 1999 By:
S/ David F. White
Controller
Exhibit 4.1
CENTURY REALTY TRUST
_____________________________________
AMENDMENT NO. 1 TO RIGHTS DECLARATION
_____________________________________
This Amendment No. 1 to Rights Declaration, adopted this 13th day of
September, 1999 ("Amendment"), amends the Rights Declaration of Century
Realty Trust ("CRT") originally adopted on October 10, 1989 ("Rights
Declaration"), as follows:
Paragraph (I) of Section 1 of the Rights Declaration shall read as follows:
"Final Expiration Date" shall mean December 31, 2004.
Paragraph (B) of Section 6 of the Rights Declaration shall read as follows:
"The Purchase Price for each share, pursuant to the exercise of a
Right shall be $20.00, shall be subject to adjustment from time to
time as provided in Section 10 or 12 hereof and shall be payable in
lawful money of the United States of America in accordance with
paragraph (C) below."
IN WITNESS WHEREOF, this Amendment No. 1 to Rights Declaration is executed
on behalf of Century Realty Trust by its President and attested by its
Controller on the date first written above.
S/ John I. Bradshaw, Jr., President
S/ David F. White, Controller
Exhibit 4.2
CENTURY REALTY TRUST
Rights Declaration
Dated as of October 10, 1989
TABLE OF CONTENTS
Section 1. Certain Definitions.. . . . . . . . . . . . . . . . . . . .1
Section 2. Issue of Right Certificates.. . . . . . . . . . . . . . . .4
Section 3. Form of Right Certificates. . . . . . . . . . . . . . . . .5
Section 4. Countersignature and Registration. . . . . . . . . . . . .6
Section 5. Transfer, Split-Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Certificates. . . . . 6
Section 6. Exercise of Rights; Purchase Price; Expiration Date of Rights. 7
Section 7. Cancellation and Destruction of Right Certificates. . . . .9
Section 8. Reservation and Availability of Shares. . . . . . . . . . .9
Section 9. Record Date.. . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Adjustment of Purchase Price, Number of Shares or Number
of Rights . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Certificate of Adjusted Purchase Price or Number of Shares.17
Section 12. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power . . . . . . . . . . . . . . . . . . . . . . .17
Section 13. Fractional Rights and Fractional Shares.. . . . . . . . . 20
Section 14. Rights of Action. . . . . . . . . . . . . . . . . . . . . 21
Section 15. Agreement of Right Holders. . . . . . . . . . . . . . . . 21
Section 16. Right Certificate Holder not Deemed a Shareholder.. . . . 21
Section 17. Issuance of New Right Certificates. . . . . . . . . . . . 22
Section 18. Redemption. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 19. Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 20. Notice of Certain Events. . . . . . . . . . . . . . . . . 24
Section 21. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 22. Supplements and Amendments. . . . . . . . . . . . . . . . 25
Section 23. Successors. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 24. Determination and Actions by the Board of Trustees, Etc. 25
Section 25. Benefits of this Declaration. . . . . . . . . . . . . . . 26
Section 26. Severability. . . . . . . . . . . . . . . . . . . . . . . 26
Section 27. Governing Law.. . . . . . . . . . . . . . . . . . . . . . 26
Section 28. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 26
Section 29. Descriptive Headings. . . . . . . . . . . . . . . . . . . 26
Exhibit A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Exhibit B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Exhibit C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
RIGHTS DECLARATION
Century Realty Trust, an Indiana business trust (the Trust ), hereby
declares that, pursuant to the Trust Indenture and the applicable laws,
the Board of Trustees has authorized and declared a dividend distribution of
one Right (as hereinafter defined) for each Share of Beneficial Interest of
the Trust outstanding at the close of business on October 31, 1989, and has
further authorized the issuance of one Right for each Share of Beneficial
Interest 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). Each Right shall represent the
right to purchase a number of Shares of Beneficial Interest in Century Realty
Trust subject to the terms and conditions, qualifications, limitations and
restrictions herein set forth.
The full terms and conditions of such Rights are as follows:
Section 1. Certain Definitions. For purposes of this Declaration,
the following terms have the meanings indicated:
(A) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
be the Beneficial owner (as such term is hereinafter defined) of 20% or more
of the Shares of Beneficial Interest of the Trust then outstanding, but
shall not include the Trust, any Subsidiary (as such term is hereinafter
defined) of the Trust, any employee benefit plan of the Trust or any
Subsidiary of the Trust, or any entity holding Shares of Beneficial Interest
for or pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result of
an acquisition of Shares of Beneficial Interest by the Trust which, by
reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 20% or more of the
Shares of Beneficial Interest of the Trust then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 20% or
more of the Shares of Beneficial Interest of the Trust then outstanding
by reason of share purchases by the Trust and shall, after such share
purchases by the Trust, become the Beneficial Owner of any additional
Shares of Beneficial Interest of the Trust, then such Person shall be
deemed to be an " Acquiring Person".
(B) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act (as such term is hereinafter defined).
(C) 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), 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 by or on behalf of such Person or any
of such Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (b) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy, or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting (except to the extent
contemplated by the provision to Section 1(C)(ii)(b)) or disposing of any
securities of the Trust; provided, however, that a Person engaged in
business as an underwriter of securities shall not be the "Beneficial
Owner" of, or to "beneficially own" any securities acquired through such
Person's participation in good faith in a firm commitment underwriting
until the expiration of forty (40) days after the date of such acquisition.
Notwithstanding anything in this definition of "Beneficial Ownership"
to the contrary, the phrase "the outstanding", when used with reference to
a Person's Beneficial Ownership of securities of the Trust, 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.
(D) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in Indiana are authorized or
obligated by law or executive order to close.
(E) "Close of Business" on any given date shall mean 4:00 P.M.,
Indianapolis time, on such date; provided, however, that if such date is
not a Business Day it shall mean 4:00 P.M., Indianapolis time, on the next
succeeding Business Day.
(F) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, as in effect on the date of this Declaration.
(G) "Shares of Beneficial Interest" and "Common Stock" when used with
reference to the Trust shall mean the securities which represent the
ownership of the Trust. "Common Stock" when used with reference to any
Person other than the Trust shall mean the capital stock (or equity
interest) with the greatest voting power of such other Person or, if such
other Person is a Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(H) "Distribution Date" shall have the meaning set forth in Section 2
hereof.
(I) "Final Expiration Date" shall mean October 10, 1999.
(J) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
(K) "Redemption Date" shall have the meaning set forth in Section 6
hereof.
(L) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(D) promulgated under the
Exchange Act) by the Trust or an Acquiring Person (which shall also include
an Acquiring Person statement made pursuant to the Indiana Control Shares
Acquisition Act (I.C. 23-1-42-6)) that an Acquiring Person has become such.
(M) "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 or such voting securities sufficient to
elect at least a majority of the directors of such corporation is owned,
directly or indirectly, by such Person.
(N) A "Trigger Event" shall be deemed to have occurred upon any
Person (other than the Trust, any Subsidiary of the Trust, any employee
benefit plan of the Trust or any Subsidiary of the Trust, or any entity
holding Shares of Beneficial Interest for or pursuant to the terms of any
such plan), together with all Affiliates and Associates of such Person,
becoming the Beneficial Owner of 30% of the Shares of Beneficial Interest
of the Trust then outstanding. Notwithstanding the foregoing, no Trigger
Event shall be deemed to have occurred as the result of an acquisition
of shares of Beneficial Interest by the Trust which, by reducing the number
of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 30% or more of the Shares of Beneficial
Interest of the Trust then outstanding; provided, however, that in the
event that a Person shall become the Beneficial Owner of 30% or more of
the Shares of Beneficial Interest of the Trust then outstanding by reason
of share purchases by the Trust, a Trigger Event shall be deemed to have
occurred upon such Person, after such share purchases by the Trust,
becoming the Beneficial owner of any additional Shares of Beneficial
Interest of the Trust.
(0) "Declaration Date" shall mean the 10th day of October, 1989.
Section 2. Issue of Right Certificates.
(A) Until the earlier of
(i) the close of business on the tenth business day after the
Shares Acquisition Date or
(ii) the close of business on the tenth business day (or such
later date as may be determined by the Board of Trustees prior to such
time as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than the Trust, any Subsidiary
of the Trust, any employee benefit plan of the Trust or of any Subsidiary
of the Trust or any entity holding Shares of Beneficial Interest for or
pursuant to the terms of any such plan) of, or first public announcement
of the intention of any Person (other than the Trust, any Subsidiary of
the Trust, any employee benefit plan of the Trust or of any Subsidiary of
the Trust or any entity holding Shares of Beneficial Interest 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 becoming the
Beneficial Owner of Shares of Beneficial Interest aggregating 20% or more
of the then outstanding Shares of Beneficial Interest (including any such
date which is after the Declaration Date and prior to the issuance of the
Rights; the earlier of such dates being herein referred to as the
"Distribution Date"), (a) the Rights will be evidenced (subject to the
provisions of Section 2(B) hereof by the certificates for Shares of
Beneficial Interest registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates (as hereinafter
defined)) and not by separate Right Certificates, (b) and the right to
receive Right Certificates will be transferable only in connection with the
transfer of Shares of Beneficial Interest. As soon as practicable after the
Distribution Date, the Trust will prepare and execute and the Trust will
send or cause to be sent by first-class, insured, postage-prepaid mail, to
each record holder of Shares of Beneficial Interest as of the close of
business on the Distribution Date, at the address of such holder shown on
the records of the Trust, a Right Certificate, in substantially the form of
Exhibit B hereto (a "Right Certificate"), evidencing one Right for each
Share of Beneficial Interest so held. In the event that an adjustment in
the number of Rights per Share of Beneficial Interest has been made, then,
at the time of distribution, the Trust shall make the necessary and
appropriate rounding adjustments (in accordance with section 13(A) hereof)
so that Right Certificates evidencing only whole numbers of Rights are
distributed and cash is paid in lieu of fractional Rights. Any beneficial
holder of Shares of Beneficial Interest identified by the Trust in a notice
addressed to the nominee as having properly elected to receive dividends
directly pursuant to a duly adopted recognition procedure of the Trust, as
authorized in IND. CODE S 23-1-30-4(a) (Cum. Supp. 1986) or any statute of
similar effect, shall be deemed to be a "record holder". As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(B) On the Declaration Date, or as soon as practicable thereafter,
the Trust will send a copy of a "Summary of Rights to Purchase Shares of
Beneficial Interest," in substantially the form of Exhibit C hereto (the
"Summary of Rights"), by first-class, postage-prepaid mail, to each record
holder of Shares of Beneficial Interest as of the close of business on the
Declaration Date, at the address of such holder shown on the records of the
Trust. With respect to certificates for Shares of Beneficial Interest
outstanding as of the close of business on the Declaration Date, until the
Distribution Date (or earlier redemption, expiration or termination of the
Rights), 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 Final Expiration Date), the surrender for transfer
of any certificate for Shares of Beneficial Interest outstanding as of the
close of business on the Declaration Date, with or without a copy of the
Summary of Rights attached thereto, shall also constitute the transfer of
the Rights associated with the Shares of Beneficial Interest represented
thereby.
(C) Certificates issued for Shares of Beneficial Interest which
become outstanding (including, without limitation, certificates issued upon
transfer or exchange of Shares of Beneficial Interest and certificates for
re-acquired Shares of Beneficial Interest referred to in the last sentence
of this paragraph (C)) after the Declaration 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 the following legend:
This certificate also entitles the holder hereof to certain Rights as
set forth in a Rights Declaration dated as of the Declaration Date (the
"Rights Declaration"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal offices of
the Trust. Under certain circumstances, such Rights will be evidenced
by separate certificates and will no longer be evidenced by this
certificate. Under certain circumstances, Rights issued to any Person
who becomes an Acquiring Person (as defined in the Rights Declaration)
or related Persons and subsequent holders thereof, may become null and
void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Shares of Beneficial
Interest 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 Shares
of Beneficial Interest represented thereby. In the event that the Trust
purchases or acquires any Shares of Beneficial Interest after the Declaration
Date but prior to the Distribution Date, any Rights associated with such
Shares of Beneficial Interest shall be deemed canceled and retired so that
the Trust shall not be entitled to exercise any Rights associated with the
Shares of Beneficial Interest which are no longer outstanding.
Section 3. Form of Right Certificates. The Right Certificates
(and the forms of election to purchase Shares of Beneficial Interest,
certificate and 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 Trust may deem appropriate and as are not
inconsistent with the provisions of this Declaration, or as may be required
to comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to usage.
Subject to provisions of Section 17 hereof, the Right Certificates, whenever
distributed, shall be dated as of the Declaration Date and on their face
shall entitle the holders thereof to purchase such number of Shares of
Beneficial Interest as shall be set forth therein at the price per share
set forth therein (the "Purchase Price"), but the number of such Shares of
Beneficial Interest and the Purchase Price shall be subject to adjustment
as provided herein.
Section 4. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Trust by its Chief
Executive Officer or a vice president of any class, either manually or by
facsimile signature, shall have affixed thereto the Trust's seal or a
facsimile thereof, and shall be attested by the Secretary or an Assistant
secretary of the Trust, either manually or by facsimile signature. Any
Right Certificate may be signed on behalf of the Trust by any Person who,
at the actual date of the execution of such Right Certificate, shall be a
proper officer of the Trust to sign such Right Certificate, although at the
date of the execution of this Rights Declaration any such Person was not
such an officer.
Following the Distribution Date, the Trust will keep or cause to be
kept, at its principal office or another office designated for such purpose,
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, the certificate number and the date
of each of the Right Certificates.
Section 5. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Certificates.
(A) Subject to the provisions of Section 13 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 (as such terms are defined in Section 6 hereof), any Right
Certificate(s) (other than Right Certificates representing Rights that have
become null and void pursuant to Section 10(A)(ii) hereof or that have been
exchanged pursuant to Section 19 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 Shares of
Beneficial Interest as the Right Certificate(s) surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer,
split-up, combine or exchange any Right Certificate(s) shall make such
request in writing delivered to the Trust, and shall surrender the Right
Certificate(s) to be transferred, split-up, combined or exchanged, at the
principal office of the Trust with the form of assignment duly executed.
The Trust shall not be obligated to take any action whatsoever with respect
to the transfer of any such surrendered Right Certificate(s) until the
registered holder shall have completed and signed the certificate contained
in the form of assignment on the reverse side of such Right Certificate and
the Trust shall have been provided with such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Trust shall reasonably request. Thereupon the
Trust shall, subject to Sections 3 and 6(C) hereof, countersign and deliver
to the Person entitled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Trust may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split-up, combination or exchange of Right
Certificates.
(B) Upon receipt by the Trust of evidence reasonably satisfactory to
it of the loss, theft, destruction or, mutilation of a Right Certificate,
and, in case of loss, theft or destruction, of indemnity or reasonably
satisfactory security, and, at the Trust's request, reimbursement to the
Trust of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Right Certificate if mutilated, the Trust will make and
deliver a new Right Certificate of like tenor to the registered holder in
lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 6. 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 certificate on the reverse
side thereof duly executed, to the Trust at the principal office of the
Trust, together with payment of the Purchase Price for each Share of
Beneficial Interest as to which the Rights are exercised, at or prior to
the earlier of
(i) the close of business on October 10,1999 (the "Final
Expiration Date"), or
(ii) the time at which the Rights are redeemed as provided
in Section 18 hereof (the "Redemption Date"), or
(iii) the time at which the Rights are exchanged as provided
in Section 19 hereof.
(B) The Purchase Price for each share pursuant to the exercise of a
Right shall initially be $15.00, shall be subject to adjustment from time
to time as provided in Section 10 or 12 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 and the certificate duly
executed, accompanied by payment of the Purchase Price for the Shares of
Beneficial Interest 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 8 hereof in cash, by certified check or cashier's
check, or money order payable to the order of the Trust, the Trust shall
thereupon promptly:
(i) (a) requisition from any transfer agent of Shares of
Beneficial Interest certificates for the number of Shares of Beneficial
Interest to be purchased and the Trust hereby irrevocably authorizes its
transfer agent to comply with all such requests, or
(b) requisition from the depository agent depository receipts
representing such number of Shares of Beneficial Interest as are to be
purchased (in which case certificates for the Shares of Beneficial Interest
represented by such receipts shall be deposited by the transfer agent
with the depository agent) and the Trust hereby directs the depository agent
to comply with such request,
(ii) when appropriate, requisition from the Trust the amount of
cash to be paid in lieu of issuance of fractional shares, in accordance with
Section 13 hereof,
(iii) 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(s) 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.
The payment of the Purchase Price (as such amount may be reduced pursuant
to Section 10(A)(iii) hereof) shall be made in cash, by certified check or
cashier's check, or by money order payable to the order of the Trust. In the
event that the Trust is obligated to issue other securities (including
common stock) of the Trust, pay cash and/or distribute other property
pursuant to Section 10(A) hereof, the Trust will make all arrangements
necessary so that such other securities, cash and/or property are available
for distribution by the Trust, if and when appropriate.
(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 Trust to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of Section 3.3 hereof.
(E) Notwithstanding anything in this Declaration to the contrary, from
and after the occurrence of a Triggering Event, any Rights beneficially
owned by (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such (other than a transferee pursuant to the proviso in Section
18(A) hereof), or (iii) a transferee of an Acquiring Person (or such
Associate or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights pursuant to
either (a) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any
Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (b) a
transfer which the Board Of Trustees of the Trust otherwise concludes in
good faith is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 6(E), shall become
null and void without any further action, and any holder of such Rights
shall thereupon have no rights whatsoever with respect to such Rights,
whether under any provision of this Declaration or otherwise, from and after
the occurrence of a Triggering Event. The Trust shall use all reasonable
efforts to insure that the provisions of this Section 6(E) and Section 3
hereof are complied with, but shall have no liability to any holder of
Rights or other Person as a result of its failure to make any determinations
with respect to an Acquiring Person or its Affiliates, Associates or
transferee hereunder.
(F) Notwithstanding anything in this Declaration to the contrary, the
Trust shall not be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported exercise as set forth
in this Section 15 unless the certificate contained in the form of election
or purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been completed and signed by the
registered holder thereof and the Trust shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial owner) or Affiliates or Associates thereof as the Trust shall
reasonably request.
(G) The Trust covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued Shares of Beneficial
Interest or any Shares of Beneficial Interest held in its treasury, the
number of Shares of Beneficial Interest that will be sufficient to permit
the exercise in full of all outstanding Rights in accordance with this Section
6.
Section 7. 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 Trust or to
any of its agents, be canceled by it and no Right Certificates shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Declaration.
Section 8. Reservation and Availability of Shares.
(A) The Trust covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued Shares of Beneficial
Interest or any Shares of Beneficial Interest held in its treasury, the
number of Shares of Beneficial Interest that will be sufficient to permit
the exercise in full of all outstanding Rights.
(B) The Trust covenants and agrees that it will take all such action
as may be necessary to ensure that all Shares of Beneficial Interest
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such Shares of Beneficial Interest (subject to payment of
the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.
(C) The Trust 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 Shares of Beneficial Interest upon the exercise of
Rights. The Trust 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 Shares of Beneficial Interest
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 Shares of Beneficial Interest 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 Trust's satisfaction
that no such tax is due.
Section 9. Record Date. Each Person in whose name any certificate
for Shares of Beneficial Interest is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the Shares
of Beneficial Interest 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 Shares of Beneficial Interest
transfer books of the Trust 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 Shares of Beneficial
Interest transfer books of the Trust 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 Shares of Beneficial Interest for
which the Rights shall be exercisable, including, without limitation, the
right to vote, or to receive dividends or other distributions or to exercise
any preemptive rights, and shall not be entitled to receive any notice of
any proceedings of the Trust, except as provided herein.
Section 10. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number of Shares of Beneficial Interest
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 10.
(A) (i) In the event the Trust shall at any time after the date of
this Declaration
(a) declare a dividend on the Shares of Beneficial Interest
payable in Shares of Beneficial Interest,
(b) subdivide the outstanding Shares of Beneficial Interest,
(c) combine the outstanding Shares of Beneficial Interest
into a smaller number of Shares of Beneficial Interest, or
(d) issue any shares in a reclassification of the Shares of
Beneficial Interest (including any such reclassification in connection with
a consolidation or merger in which the Trust is the continuing or surviving
corporation), except as otherwise provided in this Section 10(A), the
Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or reclassification,
and the number and kind of shares issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after
such time shall be entitled to receive the aggregate number and kind of
shares which, if such Right had been exercised immediately prior to such
date and at a time when the Shares of Beneficial Interest transfer books
of the Trust were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment under
both this Section 10(A)(i) and section 10(A)(ii), the adjustment provided
for in this Section 10(A)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 10(A)(ii).
(ii) Subject to Section 19 of this Declaration, in the event
a. a Trigger Event shall have occurred, or
b. any Acquiring Person or any Associate or Affiliate of any
Acquiring Person, at any time after the date of this Declaration, directly
or indirectly,
(1) shall merge into the Trust or otherwise combine with the
Trust and the Trust shall be the continuing or surviving entity of such
merger or combination and the Shares of Beneficial Interest of the Trust
shall remain outstanding and not be changed into or exchanged for purchase
or other securities of any other Person or the Trust or cash or any other
property,
(2) shall, in one or more transactions, other than the
exercise of Rights or in connection with the exercise or conversion of
securities exchangeable or convertible into shares of the Trust, transfer
any assets to the Trust in exchange (in whole or in part) for shares of
the Trust or for securities exercisable for or convertible into shares of
the Trust or otherwise obtain from the Trust, with or without consideration,
any additional shares of the Trust or securities exercisable for or
convertible into shares of the Trust (other than as part of a pro rata
distribution to all holders of such shares of the Trust or any of its
Subsidiaries),
(3) shall sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise dispose (in one or more transactions), to, from, with
or of, as the case may be, the Trust or any of its Subsidiaries, assets
(including securities) on terms and conditions less favorable to the Trust
than the Trust would be able to obtain in arm's-length negotiation with an
unaffiliated third party,
(4) shall receive any compensation from the Trust other than
compensation at rates in accordance with the Trust's (or its Subsidiaries')
past practices, or
(5) shall receive the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or
other tax advantage provided by the Trust or any of its Subsidiaries; or
c. During such time as there is an Acquiring Person, there shall
be any reclassification of securities (including any reverse stock split),
or recapitalization or reorganization of the Trust, or any merger or
consolidation of the Trust with any of its Subsidiaries or any other
transaction or series of transactions involving the Trust or any
Subsidiaries of the Trust (whether or not with or into or otherwise
involving an Acquiring Person) which has the effect, directly or indirectly,
of increasing by more than 1% the proportionate share of the outstanding
shares of any class of equity securities or of securities exercisable for
or convertible into securities of the Trust which is directly or indirectly
owned by any Acquiring Person or any Associate or Affiliate of any Acquiring
Person, then, and in each such case, proper provision shall be made so that
each holder of a Right (except as provided below and in Section 6(E) hereof)
shall have a right to receive, upon exercise thereof at the then current
Purchase Price multiplied by the number of Shares of Beneficial Interest for
which a right is then exercisable, in accordance with the terms of this
Declaration, such number of Shares of Beneficial Interest as shall equal
the result obtained by multiplying the then current Purchase Price by the
then number of Shares of Beneficial Interest for which a Right was
exercisable immediately prior to the first occurrence of a Section 10(A)(ii)
event, and dividing that product by 50% of the current per share market price
of the Shares of Beneficial Interest (determined pursuant to Section 10(D))
on the fifth day after the earlier of the date of the occurrence or the
date of the first public announcement of any one of the events listed above
in this Section 10(A)(ii). Notwithstanding the foregoing, upon the
occurrence of any of the events listed above in this Section 10(A)(ii), any
Rights that are or were on or after the earlier of the Distribution Date or
Shares Acquisition Date beneficially owned by an Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall become void and any
holder of such Rights shall thereafter have no right to exercise such Rights
under any provision of this Declaration. The Trust shall not enter into any
transaction of the kind listed in this Section 10(A)(ii) 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 otherwise substantially
diminish the benefits intended to be afforded by the Rights. Any Right
Certificate issued pursuant to Section 2 hereof that represents Rights
beneficially owned by an Acquiring Person or any Associate or Affiliate
thereof and any Right Certificate issued at any time upon the transfer of
any Rights to an Acquiring Person or any Associate or Affiliate thereof or
to any nominee of such Acquiring Person, Associate or Affiliate, and any
Right Certificate issued pursuant to Section 4 or 5 hereof or this Section
10 upon transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain the following
legend:
The Rights represented by this Right Certificate were issued to a
Person who was an Acquiring Person or an Affiliate or an Associate of
an Acquiring Person (as such terms are defined in the Rights
Declaration). This Right Certificate and the Rights represented hereby
may become void in the circumstances specified in the Rights Declaration;
(iii) In the event that there shall not be sufficient treasury
or authorized but unissued Shares of Beneficial Interest to permit the
exercise in full of the Rights in accordance with Section 10(A)(ii), the
Trust shall take all such action as may be necessary to authorize additional
Shares of Beneficial Interest for issuance upon exercise of the Rights.
(B) In case the Trust shall fix a record date for the issuance of
rights, options or warrants to all holders of Shares of Beneficial Interest
entitling them (for a period expiring within 45 calendar days after such
record date), to subscribe for or purchase Shares of Beneficial Interest
or securities convertible into Shares of Beneficial Interest at a price per
share (or having a conversion price per share, if a security convertible
into Shares of Beneficial Interest) less than the then current per share
market price of the Shares of Beneficial Interest (as defined in Section
10(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 Shares of Beneficial Interest outstanding on such
record date plus the number of Shares of Beneficial Interest which the
aggregate offering price of the total number of Shares of Beneficial Interest
so to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such current per
share market price and the denominator of which shall be the number of Shares
of Beneficial Interest outstanding on such record date plus the number of
additional Shares of Beneficial Interest to be offered for subscription or
purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid in
a consideration part or all of which shall be in a form other than cash,
the value of such consideration shall be as determined in good faith by the
Board of Trustees of the Trust. Shares of Beneficial Interest owned by or
held for the account of the Trust 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 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 the case the Trust shall fix a record date for the making of a
distribution to all holders of Shares of Beneficial Interest (including any
such distribution made in connection with a consolidation or merger in which
the Trust is the continuing or surviving entity) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a dividend payable
in Shares of Beneficial Interest) or subscription rights or warrants
(excluding those referred to in Section 10(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 Shares of Beneficial Interest on such record date, less the fair market
value (as determined in good faith by the Board of Trustees of the Trust) of
the portion of the assets or evidences of indebtedness so to be distributed
or of such subscription rights or warrants applicable to one Share of
Beneficial Interest and the denominator of which shall be such current per
share market price of the Shares of Beneficial Interest. 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 10(D)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such security for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date; provided, however, that in the event that the 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 dividend or 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-dividend date for such dividend or distribution, or the record date for
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 the National
Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or such other system then in use, or, if on any such date the
security is not quoted by an 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 Boards of Trustees of the Trust. 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.
(ii) For the purpose of any computation hereunder the "current
per share market price" of the Shares of Beneficial Interest shall be
determined in accordance with the method set forth in Section 10(D)(i). If
the Shares of Beneficial Interest are not 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 Trust.
(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 10(E) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 10 shall be made to the nearest cent. Notwithstanding the first
sentence of this Section 1O(E), any adjustment required by this Section 10
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) All Rights originally issued by the Trust subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Shares of Beneficial
Interest purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(G) Unless the Trust shall have exercised its election as provided in
Section 10(H), upon each adjustment of the Purchase Price as a result of
the calculations made in Sections 1O(B) and 10(C), 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 Shares
of Beneficial Interest obtained by (i) multiplying (a) the number of Shares
of Beneficial Interest covered by a Right immediately prior to this
adjustment by (b) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(H) The Trust 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 Shares of Beneficial Interest purchasable upon
the exercise of a Right. Each of the Rights outstanding after such adjustment
of the number of Rights shall be exercisable for the number of Shares of
Beneficial Interest for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights obtained by dividing the
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 Trust 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 10(H), the Trust 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 13 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option of the
Trust, 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 Trust, 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.
(I) Irrespective of any adjustment or change in the Purchase Price or
the number of Shares of Beneficial Interest 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 Shares of
Beneficial Interest which were expressed in the initial Right Certificates
issued hereunder.
(J) In any case in which this Section 10 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Trust 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 Shares of Beneficial Interest and other securities of
the Trust, if any, issuable upon such exercise over and above the Shares of
Beneficial Interest and other securities of the Trust, if any, issuable
upon such exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Trust shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of the event
requiring such adjustment.
(K) Anything in this Section 10 to the contrary notwithstanding, the
Trust shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 10, 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 Shares of Beneficial
Interest, issuance wholly for cash of any Shares of Beneficial Interest at
less than the current market price, issuance wholly for cash of Shares of
Beneficial Interest or securities which by their terms are convertible into
or exchangeable for Shares of Beneficial Interest, dividends on Shares of
Beneficial Interest payable in Shares of Beneficial Interest or issuance of
rights, options or warrants referred to hereinabove in Section 10(B),
hereafter made by the Trust to holders of its Shares of Beneficial Interest
shall not be taxable to such stockholders.
(L) In the event that at any time after the date of this Declaration
and prior to the Distribution Date, the Trust shall (i) declare or pay any
dividend on the Shares of Beneficial Interest payable in Shares of
Beneficial Interest or (ii) effect a subdivision, combination or
consolidation of the Shares of Beneficial Interest (by reclassification or
otherwise than by payment of dividends in Shares of Beneficial Interest)
into a greater or lesser number of Shares of Beneficial Interest, then in
any such case (a) the number of Shares of Beneficial Interest purchasable
after such event upon proper exercise of each Right shall be determined by
multiplying the number of Shares of Beneficial Interest so purchasable
immediately prior to such event by a fraction, the numerator of which is
the number of Shares of Beneficial Interest outstanding immediately before
such event and the denominator of which is the number of Shares of
Beneficial Interest outstanding immediately after such event, and (b) each
Share of Beneficial Interest outstanding immediately after such event shall
have issued with respect to it that number of Rights which each Share of
Beneficial interest outstanding immediately prior to such event had issued
with respect to it. The adjustments provided for in this Section 10(L) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
(M) The Trust covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 18 or Section 22 hereof, take
(or permit any subsidiary to take) any action the primary purpose or effect
of which is to diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(N) The Trust covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with, (ii) merge with or
into, (iii) sell or transfer (or permit any Subsidiary to sell or transfer),
in one or more transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Trust and its Subsidiaries (taken
as a whole), to any other Person (including one or more of such Person's
Affiliates and Associates) if at the time of or immediately after such
consolidation, merger or sale there are any Rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
Section 11. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 10 and 12
hereof, the Trust shall promptly (A) prepare a certificate setting forth
such adjustment, and a brief statement of the facts accounting for such
adjustment, (B) file with each transfer agent for the Shares of Beneficial
Interest a copy of such certificate and (C) mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 20 hereof.
Section 12. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(A) In the event, directly or indirectly,
(i) the Trust shall consolidate with, or merge with and into,
any other Person,
(ii) any Person shall consolidate with the Trust, or merge with
and into the Trust and the Trust shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part
of the Shares of Beneficial Interest shall be changed into or exchanged for
stock or other securities of any other Person (or the Trust) or cash or any
other property, or
(iii) the Trust shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets, earning power or cash flow aggregating more than 50%
of the assets, earning power or cash flow of the Trust and its Subsidiaries
(taken as a whole) to any other Person other than the Trust or one or more
of its wholly-owned Subsidiaries, then, and in each such case, proper
provision shall be made so that:
(a) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price multiplied by the number of
Shares of Beneficial Interest for which a Right is then excercisable,
in accordance with the terms of this Declaration, such number of validly
authorized and issued, fully paid, nonassessable and freely tradeable Shares
of common Stock of the Principal Party (as hereinafter defined), free and
clear of liens, rights of call or first refusal, encumbrances or other
adverse claims, as shall be equal to the result obtained by (1) multiplying
the then current Purchase Price by the number of shares for which a Right
is exercisable immediately prior to the first occurrence of such merger,
consolidation, sale or transfer (without taking into account any adjustment)
and dividing that product by (2) 50% of the current per share market price
of the shares of such Principal Party on the date of consummation of such
consolidation, merger, sale or transfer;
(b) the Principal Party shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Trust pursuant to this Declaration;
(c) the term "Trust" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the provisions of
Section 10 hereof shall apply only to such Principal Party following the
first occurrence of an event set forth in this Section 12(A);
(d) such issuer shall take such steps (including, but not
limited to, the reservation of a sufficient number of its shares in
accordance with Section 8 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 shares
thereafter deliverable upon the exercise of the Rights; and
(e) the provisions of Section 10(A)(ii) hereof shall be of
no effect following the first occurrence of any such merger, consolidation,
sale or transfer.
(B) "Principal Party" shall mean:
(i) in the case of any transaction described in (i) or (ii) of
the first sentence of Section 12(A), the Person that is the issuer of any
securities into which Shares of Beneficial Interest of the Trust are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or consolidation
(including the Trust if applicable); and
(ii) in the case of any transaction described in (iii) of the
first sentence in Section 12(A), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions; provided, however, that in any such case
in subparagraphs (B)(i) or (B)(ii) above: (a) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding
12-month period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person, the Common
Stock of which is and has been so registered. "Principal Party" shall refer
to such other Person; (b) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or more of
which are and have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common Stock having the
greatest aggregate market value; and (c) in case such Person is owned,
directly or indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same Person, the rules
set forth in (a) and (b) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such party were a
"subsidiary" of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligations set forth in this
Section 12 in the same ratio as their direct or indirect interests in such
Person bear to the total of such interests.
(C) The Trust shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have sufficient Common
Stock authorized to permit the full exercise of the Rights and prior
thereto the Trust and such Principal Party shall have executed a supplemental
agreement providing for the terms set forth in paragraphs (A) and (B) of
this Section 12 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in
paragraph (A) of this Section 12, the Principal Party will:
(i) prepare and file a registration statement under the Act,
with respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, and will use its best efforts to cause
such registration statement to (a) become effective as soon as practicable
after such filing and (b) remain effective (with a prospectus at all times
meeting the requirements of the Exchange Act) until the Final Expiration
Date; and
(ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates and
Associates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 12 shall similarly apply to successive
mergers or consolidations or sales or other transfers. In the event that
one of the transactions described in Section 12(A) hereof shall occur at
any time after the occurrence of a transaction described in Section 10(A)(ii)
hereof, the Rights which have not theretofore been exercised shall thereafter
become exercisable in the manner described in Section 12(A).
(D) Notwithstanding anything in this Declaration to the contrary,
Section 12 shall not be applicable to a transaction described in subparagraphs
(i) and (ii) of Section 12(A) if: (i) such transaction is consummated with
a Person or Persons who acquired Shares of Beneficial Interest pursuant to
a tender or exchange offer for all outstanding Shares of Beneficial Interest
which complies with the exception contained in Section 10(A)(ii) hereof (or
a wholly owned Subsidiary of any such Person or Persons); (ii) the price per
Share of Beneficial Interest offered in such transaction is not less than
the price per Share of Beneficial Interest paid to all holders of Shares
of Beneficial Interest whose shares were purchased pursuant to such tender
or exchange offer; and (iii) the form of consideration being offered to the
remaining holders of shares of Beneficial Interest pursuant to such
transaction is the same as the form of consideration paid pursuant to such
tender or exchange offer. Upon consummation of any such transaction
contemplated by this Section 12(D), all Rights hereunder shall expire.
Section 13. Fractional Rights and Fractional Shares.
(A) The Trust 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 same fraction of the current market
value of a whole Right. For the purposes of this Section 13(A), the current
market value of 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 Trust. If on any such date no such market maker is
making a market in the Rights, the fair market value of the Rights on such
date as determined in good faith by the Board of Trustees of the Trust shall
be used.
(B) The Trust shall not be required to issue fractions of Shares of
Beneficial Interest upon exercise of the Rights or to distribute certificates
which evidence fractional Shares of Beneficial Interest. Fractions of Shares
of Beneficial Interest in integral multiples of one one-thousandth of a Share
of Beneficial Interest may, at the election of the Trust, be evidenced by
depositary receipts, pursuant to an appropriate agreement between the Trust
and a depositary selected by it; provided, however, 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 Shares of Beneficial Interest represented by such depositary receipts.
in lieu of fractional Shares of Beneficial Interest the Trust 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 Share of Beneficial Interest. For the
purposes of this Section 13(B), the current market value of a Share of
Beneficial Interest shall be the closing price of a Share of Beneficial
Interest (as determined pursuant to the second sentence of Section 10(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 his right to receive any fractional Rights or any fractional shares
upon exercise of a Right (except as provided above).
Section 14. Rights of Action. All rights of action in respect of
this Declaration are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
the Shares of Beneficial Interest); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Shares of Beneficial
Interest), without the consent of the holder of any other Right Certificate
(or, prior to the Distribution Date, of the Shares of Beneficial Interest),
may, in his own behalf and for his own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Trust to enforce, or
otherwise act in respect of, his right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right Certificate and
in this Declaration. 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 Declaration 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 Declaration.
Section 15. Agreement of Right Holders. Every holder of a Right,
by accepting the same, consents and agrees with the Trust 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 Shares of Beneficial Interest;
(B) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Trust if surrendered at the
principal office of the Trust, duly endorsed or accompanied by a proper
instrument of transfer;
(C) the Trust may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Shares of
Beneficial Interest certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Shares of
Beneficial Interest certificate made by anyone other than the Trust) for all
purposes whatsoever, and the Trust shall not be affected by any notice to
the contrary.
Section 16. Right Certificate Holder not Deemed a Shareholder.
No holder, as such, of any Right Certificate, shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Shares of
Beneficial Interest or any other securities of the Trust 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 Trust 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 or to
receive dividends or subscription rights, or otherwise, until the Right(s)
evidenced by such Right Certificate shall have been exercised in accordance
with the provisions hereof.
Section 17. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this Declaration or of the Rights to the contrary,
the Trust may, at its option, issue new Right Certificates evidencing Rights
in such form as may be approved by its Board of Trustees to reflect any
adjustment or change in the Purchase Price and the number or kind of shares
or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Declaration.
Section 18. Redemption.
(A) The Board of Trustees of the Trust 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 the then outstanding Rights at a redemption price of $.01
per Right, appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the "Redemption Price"); provided, however,
that if, following the occurrence of a Stock Acquisition Date but prior to
the expiration of the right of redemption hereunder, each of the following
shall have occurred and remain in effect: (i) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a number of Shares of
Beneficial Interest in a transaction, or series of transactions, which did
not result in the occurrence of a Triggering Event such that such Person is
thereafter a Beneficial Owner of 10% or less of the outstanding Shares of
Beneficial Interest, (ii) there are no other Persons, immediately following
the occurrence of the event described in clause (i), who are Acquiring
Persons, and (iii) the transfer or other disposition described in clause (i)
above was other than pursuant to a transaction, or series of transactions,
which directly or indirectly involved the Trust or any of its Subsidiaries;
then the right of redemption shall be reinstated and thereafter be subject
to the provisions of this Section 18 and in all other respects this
Declaration and the rights hereunder shall be construed as if a Stock
Acquisition Date had not occurred. Notwithstanding anything contained in
this Declaration to the contrary, the Rights shall not be exercisable after
the first occurrence of an event described in Section 10(A)(ii) prior to the
expiration of the Trust's right of redemption hereunder. The Trust may, at
its option, pay the Redemption Price in cash, Shares of Beneficial Interest
or any other form of consideration deemed appropriate by the Board of
Trustees.
(B) Immediately upon the action of the Board of Trustees of the Trust
ordering the redemption of the Rights (pursuant to Section 18(A)), 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 Trust 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 the action of the Board of Trustees of the
Trust ordering the redemption of the Rights, the Trust shall mail a notice
of redemption to the holders of the then outstanding Rights at their last
addresses as they appear upon the registry books of the transfer agent for
the Shares of Beneficial Interest. 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 Trust 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 18 or in Section 19 hereof, and other than in connection with
the purchase of Shares of Beneficial Interest prior to the Distribution Date.
Section 19. Exchange. (A) The Board of Trustees of the Trust
may, at its option, at any time after the occurrence of a Trigger Event,
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 10(A)(ii) hereof) for Shares of Beneficial Interest at an exchange
ratio of one Share of Beneficial interest per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter referred to as
the "Exchange Ratio"). Not withstanding the foregoing, the Board of Trustees
shall not be empowered to effect such exchange at any time after any Person
(other than the Trust, any Subsidiary of the Trust, any employee benefit
plan of the Trust or any such Subsidiary, or any entity holding Shares of
Beneficial Interest 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 the Shares of Beneficial Interest then outstanding.
(B) Immediately upon the action of the Board of Trustees of the Trust
ordering the exchange of any Rights pursuant to paragraph (A) of this
Section 19 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 Shares of Beneficial
Interest equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio. The Trust 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 Trust
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 Trust. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the Shares
of Beneficial Interest 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 10(A)
(ii) hereof) held by each holder of Rights.
(C) In the event that there shall not be sufficient Shares of
Beneficial Interest issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this Section
l9, the Trust shall take all such action as may be necessary to authorize
additional Shares of Beneficial Interest for issuance upon exchange of the
Rights.
(D) The Trust shall not be required to issue fractions of Shares of
Beneficial Interest or to distribute certificates which evidence fractional
Shares of Beneficial Interest. In lieu of such fractional Shares of
Beneficial Interest, the Trust shall pay to the registered holders of the
Right Certificates with regard to which such fractional Shares of
Beneficial Interest would otherwise be issuable an amount in cash equal to
the same fraction of the current market value of a whole Share of Beneficial
Interest. For the purposes of this paragraph (D), the current market value
of a whole Share of Beneficial Interest shall be the closing price of a
Share of Beneficial Interest (as determined pursuant to the second sentence
of Section 10(D)(i) hereof) for the Trading Day immediately prior to the
date of exchange pursuant to this Section 19.
Section 20. Notice of Certain Events. (A) In case the Trust
shall propose (i) to pay any dividend payable in stock to the holders of
its Shares of Beneficial Interest or to make any other distribution to the
holders of its Shares of Beneficial Interest (other than a regular quarterly
cash dividend), (ii) to offer to the holders of its Shares of Beneficial
Interest rights or warrants to subscribe for or to purchase any additional
Shares of Beneficial Interest or any other securities, rights or options,
(iii) to effect any reclassification of its Shares of Beneficial Interest
(other than a reclassification involving only the subdivision of outstanding
Shares of Beneficial Interest), (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
Trust and its Subsidiaries (taken as a whole) to any other Person, (v) to
effect the liquidation, dissolution or winding up of the Trust, or (vi) to
declare or pay any dividend on the Shares of Beneficial Interest payable in
Shares of Beneficial Interest or to effect a subdivision, combination or
consolidation of the Shares of Beneficial Interest (by reclassification or
otherwise than by payment of dividends in Shares of Beneficial Interest),
then, in each such case, the Trust shall give to each holder of a Right
Certificate, in accordance with Section 21 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, 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 Shares of Beneficial Interest, 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 Shares of Beneficial Interest 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 Shares of Beneficial
Interest, whichever shall be the earlier.
(B) In case any of the events set forth in section 10(A)(ii) hereof
shall occur, then the Trust shall as soon as practicable thereafter give to
each holder of a Right Certificate, in accordance with Section 21 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
10(A)(ii) hereof.
Section 21. Notices. Notices or demands authorized by this
Declaration to be given or made by the holder of any Right Certificate (or
prior to the Distribution Date, a Share of Beneficial Interest) to or on
the Trust shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed as follows:
Century Realty Trust
320 North Meridian Street
Indianapolis, Indiana 46204
Attention: Secretary
If the above address has been changed and such change has been filed with
the SEC, then any notice shall be sent to the most recent address on file
with the SEC. Notices or demands authorized by this Declaration to be given
or made by the Trust to the holder of any Right Certificate (or prior to the
Distribution Date, a Share of Beneficial Interest) 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 Trust.
Section 22. Supplements and Amendments. The Trust may from time
to time supplement or amend this Declaration without the approval of any
holders of Right certificates (or prior to the Distribution Date, Shares
of Beneficial Interest) 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 Trust may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing
signed by the Trust; provided, however, that from and after such time as
any Person becomes an Acquiring Person, this Declaration shall not be
amended in any manner which would adversely affect the interests of the
holders of Rights. Without limiting the foregoing, the Trust may, at any
time prior to such time as any Person becomes an Acquiring Person, amend
this Declaration to lower the threshold set forth in Sections l(A), l(N)
and 2(A) to not less than the greater of (i) any percentage greater than
the largest percentage of the outstanding Shares of Beneficial Interest
then known by the Trust to be beneficially owned by any Person (other than
the Trust, any Subsidiary of the Trust, or any entity holding Shares of
Beneficial Interest for or pursuant to the terms of any such plan) and (ii)
15%.
Section 23. Successors. All the covenants and provisions of this
Declaration by or for the benefit of the Trust shall bind and inure to the
benefit of their respective successors and assigns hereunder.
Section 24. Determination and Actions by the Board of Trustees,
Etc. For all purposes of this Declaration, any calculation of the number
of Shares of Beneficial Interest outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding Shares of Beneficial interest of which any Person is the
Beneficial owner, shall be made in accordance with the provisions of Rule
l3d-3(d)(l)(i) of the General Rules and Regulations under the Exchange Act.
(A) The Board of Trustees of the Trust shall have the exclusive power
and authority to administer this Declaration and to exercise all rights and
powers specifically granted to the Board or the Trust or as may be necessary
or advisable in the administration of this Declaration, including, without
limitation, the right and power to (i) interpret the provisions of this
Declaration, and (ii) make all determinations deemed necessary or advisable
for the administration of this Declaration (including a determination to
redeem or not redeem the Rights or to amend the Declaration).
(B) All such actions, calculations, determinations (including, for
purpose of clause (ii) below, all omissions with respect to the foregoing)
which are done or made by the Board in good faith, shall (i) be final,
conclusive and binding on the Trust, the holders of the Right Certificates
and all other parties, and (ii) not subject the Board of Trustees to any
liability to the holders of the Right Certificates.
Section 25. Benefits of this Declaration. Nothing in this Declaration
shall be construed to give to any Person or corporation other than the Trust
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Shares of Beneficial Interest) any legal or equitable
right, remedy or claim under this Declaration; but this Declaration shall be
for the sole and exclusive benefit of the Trust and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the Shares
of Beneficial Interest).
Section 26. Severability. If any term, provision, covenant or
restriction of this Declaration 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 Declaration shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
Section 27. Governing Law. This Declaration and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Indiana 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 the state.
Section 28. Counterparts. This Declaration 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 29. Descriptive Headings. Descriptive headings of the
several Sections of this Declaration are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, this Declaration of Rights is executed on behalf of
the Trust by its President and attested by its Secretary this 10th day of
October 1989.
s/ King R. Traub
PRESIDENT
Attest:
s/ John I. Bradshaw, Jr.
SECRETARY
Exhibit A
CALCULATIONS UTILIZED IN THE RIGHTS DECLARATION
This Exhibit A serves to clarify the calculations described in certain
provisions of the Rights Declaration. The following mathematical equations
are to be used, any contrary wording, or interpretation thereof, in the
Declaration notwithstanding. However, the summary textual descriptions of
the variables used and the purpose and time to use each calculation herein
do not purport to be complete and are qualified in their entirety by reference
to the Rights Declaration, which is hereby incorporated herein by reference.
VARIABLES
A: Adjusted Purchase Price of Shares of Beneficial Interest upon exercise
of a Right.
C: Cost of Shares of Beneficial Interest to be bought upon exercise of Rights.
D: Discount Price; Price established for the purchase of Shares of
Beneficial Interest less than the current per share market price.
E: Number of Shares of Beneficial Interest for which a Right is exercisable.
F: Fair Market Value of the portion of the evidences of indebtedness or
assets so to be distributed or of such subscription rights or warrants
applicable to one (1) Share of Beneficial Interest.
H: Adjusted number of Rights held.
J: Number of Shares of Beneficial Interest purchased upon exercise of a Right.
K: Number of Shares of Beneficial Interest outstanding after payment of a
dividend payable in shares of Beneficial Interest or after a subdivision,
combination or consolidation of the Shares of Beneficial Interest into
a Greater or lesser number of such shares.
L: Adjusted number of Shares of Beneficial Interest purchased upon exercise
of a Right.
M: Current per share market price.
N: Number of Shares of Beneficial Interest which may be bought.
O: Outstanding Shares of Beneficial Interest.
P: Purchase Price pursuant to the exercise of a Right; as of the Declaration
Date, the Purchase Price is $15.00 but this is adjustable.
R: Number of Rights owned.
S: Number of Shares of Beneficial Interest offered at a price less than
the current per share market price.
V. Current per share market price of other Person's stock.
Y: Cost of other Person's stock to be bought.
Z: Number of shares of other Person's stock to be bought.
EQUATIONS
Equation 1: (Section 10(A)(ii))
If a Trigger Event has occurred (Section l0(A)(ii)(a)), an Acquiring
Person engages in any of a number of actions (Section 10(A)(ii)(b)),
or there is any reclassification, recapitalization, reorganization or
other transaction which increases by more than 1% the proportionate share
of outstanding Shares of Beneficial Interest held by an Acquiring Person
(Section 10(A)(ii)(c)), then, by exercise of a Right, a number of Shares
of Beneficial Interest may be bought at a modified price.
P x E
_______
N = 0.5 x M C = P x E
Thus N shares will be purchasable for $C.
Equation 2: (Section 10(B))
The Purchase Price is adjusted if the Trust sets a record date to
allow for the purchase of Shares of Beneficial Interest at a price less
than the current per share market price.
D x S
_______
A = P x 0 + M
___________
0 + S
Equation 3: (Section 10(C))
The Purchase Price is adjusted if the Trust fixes a record date
for the making of a distribution to all holders of Shares of Beneficial
Interest, of evidences of indebtedness, or assets (other than a regular
quarterly cash dividend or a dividend payable in Shares of Beneficial
Interest) or subscription rights or warrants.
M - F
_____
A = P x M
Equation 4: (Section 10(G))
Upon adjustment of the Purchase Price as a result of the
calculations made in Sections 10(B) (Equation 2) and 10(C) (Equation 3),
each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
Adjusted Purchase Price, an adjusted number of Shares of Beneficial
interest.
J x P
_____
L = A
Equation 5: (Section 10(H))
After any adjustment of the Purchase Price, the Trust may adjust
the number of Rights, in substitution for any adjustment in the number
of Shares of Beneficial Interest purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of Shares of
Beneficial Interest for which a Right was exercisable immediately
prior to such adjustment.
P
___
H = R x A
Equation 6: (Section 10(L))
If prior to the Distribution Date, the Trust. declares or pays a
dividend on the Shares of Beneficial Interest payable in additional
Shares of Beneficial Interest or effects a subdivision, combination or
consolidation of the Shares of Beneficial Interest into a greater or
lesser number of Shares of Beneficial Interest, then the number of
Shares of Beneficial Interest purchasable upon the exercise of a Right
is adjusted.
0
___
E = J x K
Equation 7: (Section 12(A)(iii)(a))
If any of the provisions of Sections 12(A)(i), 12(A)(ii) or 12(A)
(iii) are met, then each holder of a Right shall have the Right to
receive common stock of the other Person.
P x R
_______
Z = 0.5 x V Y = P x R
Thus Z shares will be purchasable for $Y.
Exhibit B
Form of Right Certificate
Certificate No. R-_____ _____ Rights
NOT EXERCISABLE AFTER ____________ __,1999, 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 RIGHTS DECLARATION.
Right Certificate
CENTURY 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 Rights Declaration, dated as of ___________ __,1989 (the 'Rights
Declaration") by Century Realty Trust (the Trust"), an Indiana corporation,
to purchase from the Trust at any time after the Distribution Date (as such
term is defined in the Rights Declaration) and prior to 4:00 p.m., Indianapolis
time on ______________ __, 1999, at the principal office of the Trust, one (1)
fully paid non-assessable Share of Beneficial Interest of the Trust at a
purchase price of $15.00 per Share of Beneficial Interest (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 Shares of Beneficial Interest 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 _______________ __,
19__, based on the Shares of Beneficial Interest as constituted at such date.
As provided in the Rights Declaration, the Purchase Price and the number of
Shares of Beneficial Interest 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 Rights Declaration, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Declaration reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Trust and the holders of the Right Certificates. Copies of the Rights
Declaration are on file at the principal executive offices of the Trust.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Trust, 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 Shares of
Beneficial Interest as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Declaration, the Rights
evidenced by this Certificate (i) may be redeemed by the Trust at a
redemption price of $.01 per Right or (ii) may be exchanged in whole or in
part for Shares of Beneficial Interest.
No fractional Shares of Beneficial Interest will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions which
are integral multiples of one-thousandth of a Share of Beneficial Interest
which may, at the election of the Trust, be evidenced by depository receipts),
but in lieu thereof a cash payment will be made, as provided in the Rights
Declaration.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of Shares of Beneficial
Interest or of any other securities of the Trust which may at any time be
issuable on the exercise hereof, as such, or to exercise any of the rights
of a stockholder of the Trust or any right to vote for the election of
trustees or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting stockholders (except as provided in
the Rights Declaration), or to receive dividends or subscription rights, or
otherwise, until the Right Certificate shall have been exercised as provided
in the Rights Declaration.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been signed and attested to by the Trust.
WITNESS the facsimile signature of the proper officers of the Trust and
its corporate seal. Dated as of _____________ __, 19__.
CENTURY REALTY TRUST
By____________________________
ATTEST:
________________________
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 Trust, with full power of substitution.
Dated: ____________________ __, 19__.
_______________________________________
(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 Rights Declaration).
_______________________________________
(Signature)
- ------------------------------------------------------------------------------
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right Certificate.)
TO CENTURY REALTY TRUST
The undersigned hereby irrevocably elects to exercise _________________
Rights represented by this Right Certificate to purchase the Shares of
Beneficial Interest issuable upon the exercise of such Rights and requests
that certificates for such Shares of Beneficial Interest 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: ________________ __, 19__.
__________________________________________
(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.
Form of Reverse Side of Right Certificate -- continued
- ----------------------------------------------------------------------------
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 Rights Declaration).
_________________________________________
(Signature)
- ------------------------------------------------------------------------------
NOTICE
The signature in the foregoing Forms of Assignment and Election 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 Trust 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 Right Declaration) and such Assignment or Election
to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF BENEFICIAL INTEREST
On _______________ __, 19__, the Board of Trustees of Century Realty
Trust (the "Trust") declared a dividend of one purchase right (a "Right")
for each outstanding share of the Trust. The dividend is payable on
_____________ __, 19__ to the stockholders at the close of business on that
date. Each Right entitles the holder to purchase from the Trust one
share of the Trust at a price of $15 per share (the "Purchase Price" ),
subject to adjustment. The description and terms of the Rights are set forth
in a Rights Declaration (the Rights Declaration ) by the Trust.
Until the earlier to occur of (i) 10 days following a public
announcement that an Acquiring Person has acquired ownership of 20% or more
of the outstanding shares or (ii) 10 business days following the
commencement or announcement of an intention to make a tender or
exchange offer which would result in the ownership by a person of 20% or
more of the outstanding shares (the earlier of these dates is called the
Distribution Date ), the Rights will be evidenced, with respect to any of
the share certificates outstanding as of the Record Date, by the share
certificate with a copy of this Summary of Rights attached.
The Rights Declaration provides that, until the Distribution Date, the
Rights will only be transferred with the shares; new share certificates
issued after the Record Date upon transfer or new issuance of shares will
contain a note incorporating the Rights Declaration, and the surrender
or transfer of any share certificates even without a note or a copy of this
Summary of Rights being attached, will also constitute the transfer of the
Rights. As soon as practicable following the Distribution Date, separate
Right Certificates will be mailed to holders of shares as of the close of
business on the Distribution Date and the separate Right Certificates alone
will evidence the Rights.
The Rights, are not exercisable until the Distribution Date. The Rights
will expire on ____________________ __, 19__ (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are
redeemed or exchanged by the Trust.
The Purchase Price and the number of shares issuable upon exercise of
the Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of the shares or (ii) upon the grant to holders of
shares of a privilege to purchase shares at a price less than the then
current market price of the shares or (iii) upon the distribution to
shareholders of evidences of indebtedness or assets (excluding regular cash
dividends).
The number of outstanding Rights and the number of shares issuable upon
exercise of each Right are also subject to adjustment in the event of a stock
split or a stock dividend payable in shares or subdivision, consolidations or
combinations of the shares occurring prior to the Distribution Date.
In the event that the Trust is acquired in a merger or 50% or more of
its assets are sold, proper provision will be made so that each holder of a
Right will have the privilege to receive, at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which, at the time of the transaction, have a market value of two times the
exercise price of the Right. In the event that (i) any person becomes the
owner of 30% or more of the outstanding shares or (ii) during such time as
there is an Acquiring Person, there shall be a reclassification of securities
which has the effect of increasing by more than 1% the portion of the
outstanding shares of the Trust owned by the Acquiring Person, proper
provision shall be made so that each holder of a Right, other than Rights
owned by the Acquiring Person (which will be void), will have the right to
receive upon exercise of a Right that number of shares having a market value
of two times the exercise price of the Right.
At any time after a person acquires ownership of 30% or more of the
outstanding shares and prior to the acquisition by a person of 50% or more
of the outstanding shares, the Trust may exchange the Rights (other than
Rights which are void), at an exchange ratio of one share per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1%
in the Purchase Price. No fractional shares will be issued (other than
fractions which may, at the election of the Trust, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash will be
made based on the market price of the shares on the last trading day prior
to the date of exercise.
At any time prior to the acquisition by a person of ownership of 20%
or more of the outstanding shares, the Trust may redeem the Rights in whole,
but not in part, at a "Redemption Price" price of $.0l per Right. The
redemption of the Rights may be made effective as the Board of Trustees 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.
The terms of the Rights may be amended by the Board of Trustees 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) any
percentage greater than the largest percentage of the outstanding shares then
known to the Trust to be owned by any person and (ii) 15%, except that
from and after such time as any person becomes an Acquiring Person no
amendment may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder will have no rights as a
shareholder of the Trust, including, without limitation, the right to vote
or to receive dividends.
A copy of the Rights Declaration has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Declaration is available from the Trust. This summary
description the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Declaration, which is hereby
incorporated herein by reference.
