SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Health and Retirement Properties Trust
(Exact name of registrant as specified in its charter)
Maryland 04-6558834
(State of incorporation (IRS Employer
or organization) Identification No.)
400 Centre Street
Newton, Massachusetts 02158
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant
to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Preferred Share New York Stock Exchange
Purchase Rights
Securities to be registered pursuant
to Section 12(g) of the Act:
None
(Title of class)
Item 1. Description of Registrant's Securities to Be
Registered
On October 17, 1994, the Board of Trustees of
Health and Retirement Properties Trust (the "Company")
declared a dividend distribution of one right for each of
the Company's outstanding Common Shares of beneficial
interest, par value $.01 per share (the "Common Shares"),
to holders of record of the Common Shares at the close of
business on November 7, 1994. Each Right entitles the
registered holder to purchase from the Company one
one-hundredth of a Preferred Share of beneficial
interest, par value $.01 per share, of the Company (the
"Preferred Shares") or in certain circumstances, to
receive cash, property, Common Shares or other securities
of the Company, at a Purchase Price of $50 per one one-
hundredth of a Preferred Share, subject to adjustment
(the "Rights"). The description and terms of the Rights
are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and State Street Bank and
Trust Company, as Rights Agent.
Initially, the Rights will be attached to all
certificates representing the Common Shares and no
separate Rights Certificates will be distributed. The
Rights will separate from the Common Shares and a
Distribution Date will occur upon the earlier of (i) 10
business days (or such later date as the Company's Board
of Trustees may determine before a Distribution Date
occurs) following a public announcement by the Company
that a person or group of affiliated or associated
persons, with certain exceptions (an "Acquiring Person"),
has acquired, or has obtained the right to acquire,
beneficial ownership of 10% or more of the outstanding
Common Shares (the date of such announcement being the
"Share Acquisition Date") or (ii) 10 business days (or
such later date as the Company's Board of Trustees may
determine before a Distribution Date occurs) following
the commencement of a tender offer or exchange offer that
would result in a person becoming an Acquiring Person.
Until the Distribution Date, (i) the Rights
will be evidenced by the certificates for Common Shares
and will be transferred with and only with such Common
Share certificates, (ii) Common Share certificates will
contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any
certificates for Common Shares outstanding will also
constitute the transfer of the Rights associated with the
Common Shares represented by such certificates.
The Rights are not exercisable until the
Distribution Date and will expire at the close of
business on October 17, 2004, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Shares as of the close of business
on the Distribution Date and, from and after the
Distribution Date, the separate Rights Certificates alone
will represent the Rights.
In the event (a "Flip-In Event") a Person
becomes an Acquiring Person (except pursuant to a tender
or exchange offer for all outstanding Common Shares at a
price and on terms which a majority of the Company's
Outside Trustees (as defined in the Rights Agreement)
determines to be fair to and otherwise in the best
interests of the Company and its shareholders (a "fair
offer")), each holder of a Right will thereafter have the
right to receive, upon exercise of such Right, Common
Shares (or, in certain circumstances, cash, property or
other securities of the Company) having a Current Market
Price (as defined in the Rights Agreement) equal to two
times the exercise price of the Right. Notwithstanding
the foregoing, following the occurrence of any Flip-In
Event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain
related parties) will be null and void in the
circumstances set forth in the Rights Agreement.
However, Rights will not be exercisable following the
occurrence of any Flip-In Event until such time as the
Rights are no longer redeemable by the Company as set
forth below.
For example, at an exercise price of $50 per
Right, each Right not owned by an Acquiring Person (or by
certain related parties) following a Flip-In Event would
entitle its holder to purchase $100 worth of Common
Shares (or other consideration, as noted above) for $50.
Assuming that the Common Shares had a Current Market
Price of $12.50 at such time, the holder of each valid
Right would be entitled to purchase 8 Common Shares for
$50.
In the event (a "Flip-Over Event") that, at any
time on or after the Share Acquisition Date, (i) the
Company shall take part in a merger or other business
combination transaction (other than certain mergers that
follow a fair offer) and the Company shall not be the
surviving entity or (ii) the Company shall take part in a
merger or other business combination transaction in which
the Common Shares are changed or exchanged (other than
certain mergers that follow a fair offer) or (iii) 50% or
more of the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights which
previously have been voided, as set forth above) shall
thereafter have the right to receive, upon exercise, a
number of shares of common stock of the acquiring company
having a Current Market Price equal to two times the
exercise price of the Right. Flip-In Events and Flip-
Over Events are collectively referred to as "Triggering
Events."
The Purchase Price payable and the number of
Preferred Shares (or the amount of cash, property or
other securities) issuable upon exercise of the Rights
are subject to adjustment from time to time to prevent
dilution (i) in the event of a share dividend on, or a
subdivision, combination or reclassification of, the
Preferred Shares, (ii) if holders of the Preferred Shares
are granted certain rights or warrants to subscribe for
Preferred Shares or convertible securities at less than
the Current Market Price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
The Company is not required to issue fractional Preferred
Shares upon the exercise of any Right or Rights evidenced
hereby. In lieu thereof, a cash payment may be made, as
provided in the Rights Agreement.
At any time until 10 business days following
the Share Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per
Right, payable, at the option of the Company, in cash,
Common Shares or other consideration as the Board of
Trustees may determine. Immediately upon the
effectiveness of the action of the Company's Board of
Trustees ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of
Rights will be to receive the $.01 per Right redemption
price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a shareholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the
Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Shares (or cash,
property or other securities) of the Company or for
common stock of the acquiring company as set forth above.
The terms of the Rights, other than key
financial terms and the date on which the Rights expire,
may be amended by the Board of Trustees of the Company
prior to the Distribution Date. Thereafter, the
provisions of the Rights Agreement may be amended by the
Board of Trustees only in order to cure any ambiguity,
defect or inconsistency, to make changes which do not
adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person and
certain other related parties) or to shorten or lengthen
any time period under the Rights Agreement; provided,
however, that no amendment to lengthen the time period
governing redemption shall be made at such time as the
Rights are not redeemable.
This summary description of the Rights does not
purport to be complete and is qualified in its entirety
by reference to the Rights Agreement filed as Exhibit 1
hereto. Capitalized terms used and not defined herein
have the meanings set forth in the Rights Agreement.
Item 2. Exhibit
The exhibit filed with this report is set forth
in the Exhibit Index below.
SIGNATURE
Pursuant to the requirements of Section 12 of
the Securities Exchange Act of 1934, the registrant has
duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By John G. Murray
Name: John G. Murray
Title: Treasurer
Dated: October 20, 1994
EXHIBIT INDEX
Exhibit No. Description Page
1. Rights Agreement, dated as of
October 17, 1994, between Health
and Retirement Properties Trust
and State Street Bank and Trust
Company, as Rights Agent.
[Pursuant to the Rights
Agreement, Rights Certificates
will not be mailed until after
the Distribution Date (as defined
in the Rights Agreement).]
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of October 17, 1994,
between Health and Retirement Properties Trust, a
Maryland real estate investment trust (the "Company"),
and State Street Bank and Trust Company, a Massachusetts
trust company (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on October 17, 1994 (the "Rights
Dividend Declaration Date"), the Board of Trustees of the
Company authorized and declared a dividend distribution
of one Right (as hereinafter defined) for each share of
Common Stock (as hereinafter defined) of the Company
outstanding at the Close of Business (as hereinafter
defined) on November 7, 1994 (the "Record Date"), and
authorized the issuance of one Right (as such number may
hereinafter be adjusted pursuant to the provisions of
Section 11(i) hereof) for each share of Common Stock of
the Company issued between the Record Date (whether
originally issued or delivered from the Company's
treasury) and the Distribution Date (as hereinafter
defined) and under certain circumstances thereafter, each
Right initially representing the right to purchase one
one-hundredth of a share of Preferred Stock (as
hereinafter defined) of the Company, upon the terms and
subject to the conditions hereinafter set forth (the
"Rights");
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes
of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 10% or more of the shares of Common Stock of the
Company then outstanding, but shall not include an Exempt
Person.
(b) "Act" shall mean the Securities Act
of 1933, as amended.
(c) "Adjustment Shares" shall have the
meaning set forth in Section 11(a)(ii) hereof.
(d) "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.
(e) "Agreement" means this Rights
Agreement as originally executed or as it may from time
to time be supplemented or amended pursuant to the
applicable provisions hereof.
(f) 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,
directly or indirectly, has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (whether or not in writing) or
upon the exercise of conversion rights,
exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," (A) 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) securities
issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering Event,
or (C) securities issuable upon exercise of
Rights from and after the occurrence of a
Triggering Event which are Original Rights or
securities issued pursuant to Section 11(i)
hereof in connection with an adjustment made
with respect to any Original Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the
Exchange Act), including pursuant to any
agreement, arrangement or understanding,
whether or not in writing; provided, however,
that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii)
as a result of an agreement, arrangement or
understanding to vote such security if such
agreement, arrangement or understanding: (A)
arises solely from a revocable proxy or consent
given in response to a public proxy or consent
solicitation made pursuant to, and in
accordance with, the applicable provisions of
the General Rules and Regulations under the
Exchange Act; and (B) is not also then
reportable by such Person 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 (or any Affiliate or Associate thereof)
with which such Person (or any of such Person's
Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in
writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable
proxy as described in clause (A) of the proviso
to subparagraph (ii) of this paragraph (f)) or
disposing of any voting securities of the
Company; provided, however, that nothing in
this paragraph (f) shall cause a person engaged
in business as an underwriter of securities to
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 days after the date of
such acquisition.
(g) "Board" means the Board of Trustees
of the Company.
(h) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the states in which either the Rights
Agent or the Transfer Agent is located are authorized or
obligated by law or executive order to close.
(i) "Close of Business" on any given date
shall mean 5:00 P.M., Boston time, on such date;
provided, however, that if such date is not a Business
Day, it shall mean 5:00 P.M., Boston time, on the next
succeeding Business Day.
(j) "Common Stock" when used with
reference to the Company shall mean the Common Shares of
beneficial interest, par value $.01 per share, of the
Company or any other shares of capital stock of the
Company into which such stock shall be reclassified or
changed. "Common Stock" when used with reference to any
Person which shall be organized in corporate form, other
than the Company, shall mean the capital stock or other
equity security with the greatest voting power or the
equity securities or other equity interest having power
to control or direct the management of such Person or, if
such Person is a Subsidiary of another Person, the Person
or Persons which ultimately control such first-mentioned
Person and which has or have issued any such outstanding
capital stock, equity securities or equity interest.
"Common Stock" when used with reference to any Person
which shall not be organized in corporate form shall mean
units of beneficial interest which (i) shall represent
the right to participate generally in the profits and
losses of such Person (including, without limitation, any
flow-through tax benefits resulting from an ownership
interest in such Person) and (ii) shall be entitled to
exercise the greatest voting power of such Person or, in
the case of a limited partnership, shall have the power
to remove the general partner or partners.
(k) "Common Stock Equivalents" shall have
the meaning set forth in Section 11(a)(iii) hereof.
(l) "Company" shall mean the Person named
as the "Company" in the first paragraph of this Agreement
until a successor corporation shall have become such, or
until a Principal Party shall assume, and thereafter be
liable for, all obligations and duties of the Company
hereunder pursuant to the applicable provisions of this
Agreement, and thereafter "Company" shall mean such
successor corporation or Principal Party.
(m) "Continuing Trustee" shall mean any
member of the Board (while such Person is a member of the
Board) who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative or
nominee of an Acquiring Person or of any such Affiliate
or Associate, and who either (i) was a member of the
Board prior to the Stock Acquisition Date or (ii) on or
subsequent to the Stock Acquisition Date became a member
of the Board and whose nomination for election or
election to the Board was recommended or approved by a
majority of the Continuing Trustee then on the Board.
(n) "Current Market Price" shall have the
meaning set forth in Section 11(d) hereof.
(o) "Current Value" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(p) "Distribution Date" shall have the
meaning set forth in Section 3(a) hereof.
(q) "Equivalent Preferred Stock" shall
have the meaning set forth in Section 11(b) hereof.
(r) "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
(s) "Exchange Ratio" shall have the
meaning set forth in Section 29(a) hereof.
(t) "Exempt Person" shall mean (i) the
Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit or employee stock plan of the Company or
of any Subsidiary of the Company, (iv) any Person or
entity organized, appointed, established or holding
Common Stock of the Company by, for or pursuant to the
terms of any such plan, (v) any Person who becomes an
Acquiring Person solely as a result of a reduction in the
number of shares of Common Stock of the Company
outstanding due to the repurchase of shares of Common
Stock of the Company by the Company, unless and until any
such Person shall purchase or otherwise become the
Beneficial Owner of additional shares of Common Stock of
the Company constituting 1% or more of the then
outstanding shares of Common Stock of the Company, (vi)
any Person who or which shall have executed a written
agreement with the Company (which shall have been
approved by a majority of the Outside Trustees) prior to
the date on which such Person became the Beneficial Owner
of 10% or more of the shares of Common Stock then
outstanding, which agreement imposes one or more
limitations (the "Thresholds") on the amount of such
Person's Beneficial Ownership of shares of Common Stock,
if and so long as the Thresholds continue to be binding
on such Person and such Person is in substantial
compliance (as determined by a majority of the Outside
Trustees) with the terms of such written agreement or
(vii) any Person who or which is then serving as the
Company's investment advisor.
(u) "Expiration Date" shall have the
meaning set forth in Section 7(a) hereof.
(v) "Final Expiration Date" shall mean
the Close of Business on October 17, 2004.
(w) "Original Rights" shall mean Rights
acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date
or pursuant to Section 3(a) or Section 22 hereof.
(x) "Outside Trustees" shall mean members
of the Board who are not officers of the Company or any
of its Subsidiaries or officers or stockholders of the
Company's investment advisor and who are not Acquiring
Persons or representatives, nominees, Affiliates or
Associates of Acquiring Persons.
(y) "Person" shall mean any individual,
firm, corporation, partnership, trust or other entity and
includes, without limitation, an unincorporated group of
persons who, by formal or informal agreement, have
embarked on a common purpose or act.
(z) "Preferred Stock" shall mean the
Junior Participating Preferred Shares of beneficial
interest, par value $.01 per share, of the Company,
having the rights, powers and preferences as set forth on
Exhibit A hereto.
(aa) "Principal Party" shall have the
meaning set forth in Section 13(b) hereof.
(bb) "Purchase Price" shall have the
meaning set forth in Section 4(a) hereof.
(cc) "Record Date" shall have the meaning
set forth in the WHEREAS clause at the beginning of the
Agreement.
(dd) "Redemption Price" shall have the
meaning set forth in Section 23(a) hereof.
(ee) "Rights" shall have the meaning set
forth in the WHEREAS clause at the beginning of the
Agreement.
(ff) "Rights Agent" shall mean the Person
named as the "Rights Agent" in the first paragraph of
this Agreement until a successor Rights Agent shall have
become such pursuant to the applicable provisions hereof,
and thereafter, "Rights Agent" shall mean such successor
Rights Agent. If at any time there is more than one
Person appointed by the Company as Rights Agent pursuant
to the applicable provisions of this Agreement, "Rights
Agent" shall mean and include each such Person.
(gg) "Rights Certificates" shall have the
meaning set forth in Section 3(a) hereof.
(hh) "Rights Dividend Declaration Date"
shall have the meaning set forth in the WHEREAS clause at
the beginning of the Agreement.
(ii) "Section 11(a)(ii) Event" shall have
the meaning set forth in Section 11(a)(ii) hereof.
(jj) "Section 11(a)(ii) Trigger Date"
shall have the meaning set forth in Section 11(a)(iii)
hereof.
(kk) "Section 13 Event" shall have the
meaning set forth in Section 13(a) hereof.
(ll) "Spread" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(mm) "Stock Acquisition Date" shall mean
the first date of public announcement by the Company that
an Acquiring Person has become such.
(nn) "Subsidiary" shall mean, with
reference to any Person, any corporation or other entity
of which securities or other ownership interest having
ordinary voting power sufficient, in the absence of
contingencies, to elect a majority of the board of
directors or other persons performing similar functions
are at the time directly or indirectly beneficially
owned, or otherwise controlled, by such Person and any
Affiliate of such Person.
(oo) "Substitution Period" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(pp) "Summary of Rights" shall have the
meaning set forth in Section 3(a) hereof.
(qq) "Thresholds" shall have the meaning
set forth in Section 11(d)(ii) hereof.
(rr) "Trading Day" shall have the meaning
set forth in Section 11(d)(ii) hereof.
(ss) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Stock
of the Company) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary or
desirable. Any actions which may be taken by the Rights
Agent pursuant to the terms of this Agreement may be
taken by any such Co-Rights Agent.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the Close of
Business on the tenth Business Day (or such specified
later date as may be determined by the Board with the
concurrence of a majority of the Continuing Trustees
before the occurrence of the Distribution Date) after the
Stock Acquisition Date (or, if the tenth Business Day
after the Stock Acquisition Date occurs before the Record
Date, the Close of Business on the Record Date) or (ii)
the Close of Business on the tenth Business Day (or such
specified or unspecified later date as may be determined
by the Board with the concurrence of a majority of the
Continuing Trustees before the occurrence of the
Distribution Date) after the date that a tender or
exchange offer by any Person (other than an Exempt
Person) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation
thereof, such Person would be an Acquiring Person (the
earlier of (i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraphs (b) and (c) of
this Section 3) by the certificates for the Common Stock
of the Company registered in the names of the holders of
the Common Stock of the Company either with the Summary
of Rights to Purchase Preferred Stock, substantially in
the form attached hereto as Exhibit B (the "Summary of
Rights"), attached or bearing the legend set forth in
Section 3(c) hereof (which certificates for Common Stock
of the Company shall be deemed also to be certificates
for Rights) and not by separate certificates and (y) the
Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock of the
Company (including a transfer to the Company). As soon
as practicable after the Distribution Date, the Rights
Agent will send by first-class, insured, postage prepaid
mail, to each record holder of the Common Stock of the
Company as of the Close of Business on the Distribution
Date, at the address of such holder shown on the records
of the Company, one or more rights certificates in
substantially the form of Exhibit C hereto (the "Rights
Certificates") evidencing one Right for each share of
Common Stock of the Company so held, subject to
adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common
Stock of the Company has been made pursuant to Section
11(i) hereof, at the time of distribution of the Rights
Certificates, the Company shall make the necessary and
appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Rights. As of
and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) As promptly as practicable following
the Record Date, the Company will send a copy of the
Summary of Rights by first-class, postage prepaid mail,
to each record holder of the Common Stock of the Company
as of the Close of Business on the Record Date, at the
address of such holder shown on the records of the
Company. With respect to certificates for the Common
Stock of the Company outstanding as of the Record Date,
as set forth in paragraph (a) above, until the earlier of
the Distribution Date or the Expiration Date, the Rights
will be evidenced by such certificates for the Common
Stock of the Company with or without a copy of the
Summary of Rights attached, and the registered holders of
the Common Stock of the Company shall also be the
registered holders of the associated Rights. Until the
earlier of the Distribution Date or the Expiration Date,
the transfer of any certificates representing shares of
Common Stock of the Company in respect of which Rights
have been issued shall also constitute the transfer of
the Rights associated with such shares of Common Stock of
the Company.
(c) Rights shall be issued in respect of
all shares of Common Stock of the Company which are
issued (whether originally issued or from the Company's
treasury) after the Record Date but prior to the earlier
of the Distribution Date or the Expiration Date, and to
the extent provided in Section 22 hereof, in respect of
shares of Common Stock of the Company issued after the
Distribution Date and prior to the Expiration Date.
Certificates representing such shares of Common Stock of
the Company shall also be deemed to be certificates for
Rights, and shall, as promptly as practicable following
the Record Date, bear the following legend:
This certificate also evidences and
entitles the holder hereof to certain Rights as
set forth in the Rights Agreement between
Health and Retirement Properties Trust (the
"Company") and State Street Bank and Trust
Company (the "Rights Agent") dated as of
October 17, 1994 (the "Rights Agreement"), the
terms of which are hereby incorporated herein
by reference and a copy of which is on file at
the principal offices of the Company. Under
certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be
evidenced by this certificate. The Company
will mail to the holder of this certificate a
copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly
after receipt of a written request therefor.
Under certain circumstances set forth in the
Rights Agreement, Rights beneficially owned (as
such term is defined in the Rights Agreement)
by, any Person who is, was or becomes an
Acquiring Person, or any Affiliate or Associate
thereof (as such terms are defined in the
Rights Agreement), whether currently held by or
on behalf of such Person or by any subsequent
holder, may become null and void. The Rights
shall not be exercisable, and shall be void so
long as held, by a holder in any jurisdiction
where the requisite qualification to the
issuance to such holder, or the exercise by
such holder, of the Rights in such jurisdiction
shall not have been obtained or be obtainable.
With respect to such certificates containing the
foregoing legend, until the earlier of the Distribution
Date or the Expiration Date, the Rights associated with
the Common Stock of the Company represented by such
certificates shall be evidenced by such certificates
alone, and registered holders of Common Stock of the
Company shall also be the registered holders of the
associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the
Rights associated with the Common Stock of the Company
represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit C hereto
and may have such marks of identification or designation
and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any 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 the provisions of Section
11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof
to purchase such number of one one-hundredths of a share
of Preferred Stock as shall be set forth therein at the
exercise price set forth therein (such exercise price per
one one-hundredth of a share, as adjusted from time to
time hereunder, the "Purchase Price"), but the amount and
type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents 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 of
any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such or (iii) a
transferee of an Acquiring Person (or of any 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 such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which a majority of the
Continuing Trustees has determined is part of a plan,
arrangement or understanding which has as a primary
purpose or effect avoidance of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in
this sentence, shall contain (to the extent feasible) the
following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person or
an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby
may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed under seal (or with the same force and effect as
a document executed under seal) on behalf of the Company
by its Chairman of the Board, its President or any Vice
President and by the Treasurer or any Assistant
Treasurer, either manually or by facsimile signature.
The Rights Certificates shall be manually countersigned
by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of
the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to
sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was
not such an officer.
(b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise
or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section
4(b), Section 7(e) and Section 14 hereof, at any time
after the Close of Business on the Distribution Date, and
at or prior to the Close of Business on the Expiration
Date, any Rights Certificate or Rights Certificates may
be transferred, split up, combined or exchanged for
another Rights Certificate or Rights Certificates,
entitling the registered holder to purchase a like number
of one one-hundredths of a share of Preferred Stock (or,
following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as
the Rights Certificate or Rights Certificates surrendered
then entitled such holder (or former holder in the case
of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any
Rights Certificate or Rights Certificates shall make such
request in writing delivered to the Rights Agent, and
shall surrender the Rights Certificate or Certificates to
be transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action
whatsoever with respect to the transfer or exchange of
any such surrendered Rights Certificate or Rights
Certificates until the registered holder shall have
completed and signed the certificate contained in the
form of assignment on the reverse side of such Rights
Certificate or Rights Certificates and shall have
provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall,
subject to Section 4(b), Section 7(e) and Section 14
hereof, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as
the case may be, as so requested. The Company 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
Rights Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to each
of them of the loss, theft, destruction or mutilation of
a valid Rights Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably
satisfactory to each of them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new
Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in
lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the
registered holder of any Rights Certificate may exercise
the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or
in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse
side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number
of one one-hundredths of a share (or other securities,
cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior
to the earliest of (i) the Final Expiration Date, (ii)
the time at which the Rights are redeemed as provided in
Section 23 hereof or exchanged as provided in Section 29
hereof or (iii) the time at which the Rights expire
pursuant to Section 13(d) hereof (the earliest of (i),
(ii) and (iii) being herein referred to as the
"Expiration Date").
(b) The Purchase Price for each one one-
hundredth of a share of Preferred Stock pursuant to the
exercise of a Right shall initially be $50 and shall be
subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate on the reverse
side of the Rights Certificate duly executed, accompanied
by payment, with respect to each Right so exercised, of
the Purchase Price, as such amount may be reduced
pursuant to Section 11(a)(iii) hereof, per one one-
hundredth of a share of Preferred Stock (or other shares,
securities, cash or other assets, as the case may be) to
be purchased as set forth below and an amount equal to
any applicable transfer tax, the Rights Agent shall,
subject to Sections 7(f) and 20(k) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of
the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent for such shares)
certificates for the total number of one one-hundredths
of a share of Preferred Stock to be purchased and the
Company hereby irrevocably authorizes its transfer agent
to comply with all such requests, or (B) if the Company
shall have elected to deposit the total number of shares
of Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such
number of one one-hundredths of a share of Preferred
Stock as are to be purchased (in which case certificates
for the shares of Preferred Stock represented by such
receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance
with Section 14 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 Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after
receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified check,
cashier's check or bank draft payable to the order of the
Company. In the event that the Company is obligated to
issue other securities (including Common Stock) of the
Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make
all arrangements necessary so that such other securities,
cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate. The
Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise
of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock would be issued.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person which a
majority of the Continuing Trustees in its sole
discretion determines is or was involved in or caused or
facilitated, directly or indirectly, such Section
11(a)(ii) Event, (ii) a transferee of any such Acquiring
Person (or of any such Associate or Affiliate) who
becomes a transferee after such Acquiring Person becomes
such or (iii) a transferee of any such Acquiring Person
(or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with such Acquiring
Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration)
from such Acquiring Person to holders of equity interests
in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which a majority of the
Continuing Trustees has determined is part of a plan,
arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and
no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use
all reasonable efforts to ensure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied
with, but the Company and the Rights Agent shall have no
liability to any holder of Rights Certificates or other
Person as a result of the Company's failure to make any
determinations with respect to an Acquiring Person or any
of their Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder of any Rights
Certificate upon the occurrence of any purported exercise
as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the
certificate contained in the form of assignment or
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such assignment or
exercise and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form or if
surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Capital Stock.
(a) The Company covenants and agrees that
it will cause to be reserved and kept available out of
its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out
of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares
of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
that, as provided in this Agreement (including Section
11(a)(iii) hereof), will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and
deliverable upon the exercise of the Rights may be listed
on any national securities exchange, the Company shall
use its reasonable efforts to cause, from and after such
time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
(c) The Company shall use all reasonable
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Triggering
Event in which the consideration to be delivered by the
Company upon exercise of the Rights has been determined
in accordance with this Agreement, a registration
statement under the Act on an appropriate form with
respect to the securities purchasable upon exercise of
the Rights, (ii) cause such registration statement to
become effective as soon as practicable after such filing
and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for
such securities or (B) the Expiration Date. The Company
will also take such action as may be appropriate under,
or to ensure compliance with, the securities or "blue
sky" laws of the various states in connection with the
exercisability of the Rights. The Company may, acting by
resolution of its Board (which resolution shall be
effective only with the concurrence of a majority of the
Continuing Trustees), temporarily suspend, for a period
of time not to exceed ninety (90) days after the date set
forth in clause (i) of the first sentence of this Section
9(c), the exercisability of the Rights in order to
prepare and file such registration statement and permit
it to become effective. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect.
In addition, if the Company shall determine that a
registration statement is required in other circumstances
following the Distribution Date, the Company may
similarly temporarily suspend the exercisability of the
Rights until such time as a registration statement has
been declared effective. Notwithstanding any provision
of this Agreement to the contrary, the Rights shall not
be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been
obtained, the exercise thereof shall not otherwise be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that
it will take all such action as may be necessary to
ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly
authorized and issued, fully paid and nonassessable.
(e) The Company further covenants and
agrees that, except as set forth in Section 6(a) hereof,
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 Rights
Certificates and of any certificates for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) upon
the exercise of Rights. The Company shall not, however,
be required to pay any transfer tax which may be payable
in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or
delivery of a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities,
as the case may be) in respect of a name other than that
of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, nor shall the
Company be required to issue or deliver any certificates
for a number of one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities,
as the case may be) in a name other than that of the
registered holder upon the exercise of any Rights until
such tax shall have been paid (any such tax being payable
by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date
upon which the Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment
is a date upon which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer
books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities,
as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a shareholder of the Company
with respect to shares for which the Rights shall be
exercisable, including without limitation the right to
vote, 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 Company,
except as provided herein.
Section 11. Adjustment of Purchase Price,
Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares, or
fractions thereof, purchasable upon the exercise of each
Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section
11.
(a) (i) In the event the
Company shall at any time after the date of
this Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred
Stock, (B) subdivide or split the outstanding
Preferred Stock, (C) combine or consolidate the
outstanding Preferred Stock into a smaller
number of shares or (D) issue any shares of its
capital stock in a reclassification of the
Preferred Stock (including any such
reclassification in connection with a
consolidation or merger in which the Company is
the continuing or surviving corporation),
except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase
Price in effect at the time of the record date
for such dividend or of the effective date of
such subdivision, split, combination,
consolidation or reclassification, and the
number and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted so
that the holder of any Right exercised after
such time shall be entitled to receive, upon
payment of the Purchase Price then in effect,
the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised
immediately prior to such date and at a time
when the Preferred Stock (or other capital
stock, as the case may be) transfer books of
the Company were open, he would have owned upon
such exercise and been entitled to receive by
virtue of such dividend, subdivision, split,
combination, consolidation or reclassification.
If an event occurs which would require an
adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment
provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any
adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event (a "Section
11(a)(ii) Event") any Person (other than an
Exempt Person) alone or together with its
Affiliates and Associates (other than an Exempt
Person) shall, at any time after the Rights
Dividend Declaration Date, become an Acquiring
Person, unless the event causing such Person to
become an Acquiring Person is (x) a Section 13
Event or (y) an acquisition of shares of Common
Stock of the Company pursuant to a tender offer
or an exchange offer for all outstanding shares
of Common Stock of the Company at a price and
on terms determined by at least a majority of
the Outside Trustees, after receiving advice
from one or more investment banking firms, to
be (a) at a price which is fair to shareholders
(taking into account all factors which such
Outside Trustees deem relevant including,
without limitation, prices which could
reasonably be achieved if the Company or its
assets were sold on an orderly basis designed
to realize maximum value) and (b) otherwise in
the best interests of the Company and its
shareholders, then promptly after the date of
occurrence of a Section 11(a)(ii) Event, proper
provision shall be made so that each holder of
a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the
then current Purchase Price in accordance with
the terms of this Agreement, in lieu of a
number of one one-hundredths of a share of
Preferred Stock, such number of shares of
Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then
current Purchase Price by the then number of
one one-hundredths of a share of Preferred
Stock for which a Right was exercisable
immediately prior to the first occurrence of a
Section 11(a)(ii) Event, whether or not such
Right was then exercisable, and (y) dividing
that product (which, following such first
occurrence, shall thereafter be referred to as
the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the
Current Market Price per share of Common Stock
of the Company on the date of such first
occurrence (such number of shares being
referred to as the "Adjustment Shares").
(iii) In lieu of issuing shares
of Common Stock of the Company in accordance
with Section 11(a)(ii) hereof, the Company,
acting by resolution of the Board (which
resolution shall be effective only with the
concurrence of a majority of the Continuing
Trustees), may, and in the event that the
number of shares of Common Stock of the Company
which are authorized by the Company's
Declaration of Trust (as the same may be
amended and restated from time to time) but not
outstanding or reserved for issuance for
purposes other than upon exercise of the Rights
is not sufficient to permit the exercise in
full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section
11(a), the Company, acting by resolution of the
Board (which resolution shall be effective only
with the concurrence of a majority of the
Continuing Trustees), shall (A) determine the
excess of (1) the value of the Adjustment
Shares issuable upon the exercise of a Right
(the "Current Value") over (2) the Purchase
Price attributable to each Right (such excess
being referred to as the "Spread"), and (B)
with respect to each Right (subject to Section
7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1)
cash, (2) a reduction in the Purchase Price,
(3) equity securities of the Company other than
Common Stock of the Company (including, without
limitation, shares, or units of shares, of
preferred stock which the Board has deemed to
have the same value as shares of Common Stock
(such shares of preferred stock being referred
to as "Common Stock Equivalents")), (4) debt
securities of the Company, (5) other assets or
(6) any combination of the foregoing which,
when added to any shares of Common Stock issued
upon such exercise, have an aggregate value
equal to the Current Value, where such
aggregate value has been determined by the
Board (with the concurrence of a majority of
the Continuing Trustees) based upon the advice
of a nationally recognized investment banking
firm selected by the Board; provided, however,
if the Company shall not have made adequate
provision to deliver value pursuant to clause
(B) above within thirty 30 days following the
later of (x) the first occurrence of a Section
11(a)(ii) Event and (y) the date on which the
Company's right of redemption pursuant to
Section 23(a) hereof, as such date may be
amended pursuant to Section 26 hereof, expires
(the later of (x) and (y) being referred to
herein as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a
Right and without requiring payment of the
Purchase Price, shares of Common Stock of the
Company (to the extent available) and then, if
necessary, cash, which shares and/or cash have
an aggregate value equal to the Spread. If the
Board (with the concurrence of a majority of
the Continuing Trustees) shall determine in
good faith that it is likely that sufficient
additional shares of Common Stock of the
Company could be authorized for issuance upon
exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to
the extent necessary, but not more than ninety
(90) days after the Section 11(a)(ii) Trigger
Date, in order that the Company may seek
shareholder approval for the authorization of
such additional shares (such period, as it may
be extended being referred to herein as the
"Substitution Period"). To the extent that the
Company determines that some action need be
taken pursuant to the first and/or second
sentences of this Section 11(a)(iii), the
Company (x) shall provide, subject to Section
7(e) hereof, that such action shall apply
uniformly to all outstanding Rights and (y) may
suspend the exercisability of the Rights until
the expiration of the Substitution Period in
order to seek any authorization of additional
shares and/or to decide the appropriate form of
distribution to be made pursuant to such first
sentence and to determine the value thereof.
In the event of any such suspension, the
Company shall issue a public announcement
stating that the exercisability of the Rights
has been temporarily suspended, as well as a
public announcement at such time as the
suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value
of the Common Stock of the Company shall be the
Current Market Price per share of the Common
Stock of the Company on the Section 11(a)(ii)
Trigger Date and the value of any Common Stock
Equivalent shall be deemed to have the same
value as the Common Stock of the Company on
such date.
(b) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring
within 45 calendar days after such record date)
Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred
Stock ("Equivalent Preferred Stock")) or securities
convertible into Preferred Stock or Equivalent Preferred
Stock at a price per share of Preferred Stock or per
share of Equivalent Preferred Stock (or having a
conversion price per share, if a security convertible
into Preferred Stock or Equivalent Preferred Stock) less
than the Current Market Price per share of Preferred
Stock 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 Preferred Stock
outstanding on such record date, plus the number of
shares of Preferred Stock and/or Equivalent Preferred
Stock which the aggregate subscription or purchase price
of the total number of shares of Preferred Stock and/or
Equivalent Preferred Stock so to be offered (and/or the
aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such
Current Market Price, and the denominator of which shall
be the number of shares of Preferred Stock outstanding on
such record date, plus the number of additional shares of
Preferred Stock and/or Equivalent Preferred Stock 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 by delivery of consideration part or all of which
may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the
Board (with the concurrence of a majority of the
Continuing Trustees), whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. Shares of
Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose
of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in
the event that such rights, options or warrants are not
so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a
record date for a distribution to all holders of
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular
periodic cash dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend
payable in Preferred Stock, but including any dividend
payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in
effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of
which shall be the Current Market Price per share of
Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board (with the
concurrence of a majority of the Continuing Trustees),
whose determination shall be described in a statement
filed with the Rights Agent and shall be binding upon the
Rights Agent and the holders of the Rights) of the
portion of the cash, assets or evidences of indebtedness
so to be distributed or of such subscription rights or
warrants applicable to a share of Preferred Stock and the
denominator of which shall be such Current Market Price
per share of Preferred Stock. 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 be adjusted to be the Purchase
Price which would have been in effect if such record date
had not been fixed.
(d) (i) For the purpose of any
computation hereunder, other than computations
made pursuant to Section 11(a)(iii) hereof, the
Current Market Price per share of Common Stock
on any date shall be deemed to be the average
of the daily closing prices per share of such
Common Stock for the thirty (30) consecutive
Trading Days immediately prior to such date,
and for purposes of computations made pursuant
to Section 11(a)(iii) hereof, the Current
Market Price per share of Common Stock on any
date shall be deemed to be the average of the
daily closing prices per share of such Common
Stock for the ten (10) consecutive Trading Days
immediately following such date; provided,
however, that in the event that the Current
Market Price per share of the Common Stock is
determined during a period following the
announcement by the Company of (A) a dividend
or distribution on such Common Stock payable in
shares of such Common Stock or securities
convertible into shares of such Common Stock
(other than the Rights) or (B) any subdivision,
combination, consolidation, reverse stock split
or reclassification of such Common Stock, and
prior to the expiration of the requisite thirty
(30) Trading Day or ten (10) Trading Day
period, as set forth above, after the ex-
dividend date for such dividend or
distribution, or the record date for such
subdivision, combination, consolidation,
reverse stock split or reclassification, then,
in each such case, the Current Market Price
shall be properly adjusted to take into account
ex-dividend trading. 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 shares of
Common Stock 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 shares of
Common Stock are listed or admitted to trading,
or if the shares of Common Stock 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 the Nasdaq National
Market or the Nasdaq Stock Market or such other
quotation system then in use, or if on any such
date the shares of Common Stock 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 Common Stock selected by the Board (with
the concurrence of a majority of the Continuing
Trustees). If the Common Stock is not publicly
held or not so listed, traded or quoted, and a
market maker is not making a market, Current
Market Price per share of Common Stock shall
mean the fair value per share as determined in
good faith by the Board (with the concurrence
of a majority of the Continuing Trustees),
whose determination shall be described in a
statement filed with the Rights Agent and shall
be conclusive for all purposes.
(ii) For the purpose of any
computation hereunder, the Current Market Price
per share of Preferred Stock shall be
determined in the same manner as set forth
above for the Common Stock in clause (i) of
this Section 11(d) (other than the last
sentence thereof). If the Current Market Price
per share of Preferred Stock cannot be
determined in the manner provided above or if
the Preferred Stock is not publicly held or
listed or traded in a manner described in
clause (i) of this Section 11(d), the Current
Market Price per share of Preferred Stock shall
be conclusively deemed to be an amount equal to
100 (as such number may be appropriately
adjusted for such events as stock splits, stock
dividends and recapitalizations with respect to
the Common Stock occurring after the date of
this Agreement) multiplied by the Current
Market Price per share of the Common Stock. If
neither the Common Stock nor the Preferred
Stock is publicly held or so listed or traded,
Current Market Price per share of the Preferred
Stock shall mean the fair value per share as
determined in good faith by the Board (with the
concurrence of a majority of the Continuing
Trustees), whose determination shall be
described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
For all purposes of this Agreement, the Current
Market Price of one one-hundredth of a share of
Preferred Stock shall be equal to the Current
Market Price of one share of Preferred Stock
divided by 100. The term "Trading Day" shall
mean a day on which the principal national
securities exchange on which the shares of
Common Stock are listed or admitted to trading
is open for the transaction of business, or if
the shares of Common Stock are not listed or
admitted to trading on any national securities
exchange, a Business Day.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to
the nearest thousandth of a share of Common Stock or
other share or one-millionth of a share of Preferred
Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required
by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment or (ii) the
Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof,
the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other
than Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the
Purchase Price thereof (or the number of rights) shall be
subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained
in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k)
and (m), and the provisions of Sections 7, 9, 10, 13 and
14 hereof with respect to the Preferred Stock shall apply
on like terms to any such other shares; provided,
however, that the Company shall not be liable for its
inability to reserve and keep available for issuance upon
exercise of the Rights pursuant to Section 11(a)(ii) a
number of shares of Common Stock of the Company greater
than the number then authorized by the Company's
Declaration of Trust (as the same may be amended and
restated from time to time) but not outstanding or
reserved for any other purpose.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of one one-
hundredths of a share of Preferred Stock purchasable from
time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (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
one one-hundredths of a share of Preferred Stock
(calculated to the nearest one one-millionth of a share)
obtained by (i) multiplying (x) the number of one one-
hundredths of a share covered by a Right immediately
prior to this adjustment, by (y) the Purchase Price in
effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of one one-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one one-
hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one-ten
thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the
number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been
issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall,
as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record
date Rights Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or at
the option of the Company, shall cause to be distributed
to such holders of record in substitution and replacement
for the Rights Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so
to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record
date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of one one-
hundredths of a share of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredths of a share and
the number of one one-hundredths of a share which were
expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below the
then stated value, if any, of the number of one one-
hundredths of a share of Preferred Stock issuable upon
exercise of the Rights, the Company shall use its best
efforts to take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable such number of one one-hundredths of a
share of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right
exercised after such record date the number of one one-
hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-hundredths of a share of Preferred Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares
(fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such adjustments in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in its good faith
judgment the Board shall determine to be advisable in
order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any
shares of Preferred Stock at less than the Current Market
Price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred
Stock shall not be taxable to such shareholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) or
(iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger,
sale or transfer 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 or (y) prior to, simultaneously with or
immediately after such consolidation, merger, sale or
transfer, the stockholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes
of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or
any of its Affiliates and Associates.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23, Section 26, Section 29 or
Section 31 hereof, take (or permit any Subsidiary to
take) any action if at the time such action is taken it
is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock of the
Company payable in shares of Common Stock of the Company,
(ii) subdivide the outstanding shares of Common Stock of
the Company in a manner not covered in (i) above or (iii)
combine the outstanding shares of Common Stock of the
Company into a smaller number of shares, (x) the number
of one one-hundredths of a share of Preferred Stock then
purchasable upon exercise of a Right shall be
proportionately adjusted so that the number of one one-
hundredths of a share of Preferred Stock purchasable
thereafter upon proper exercise of each Right shall equal
the result obtained by multiplying the number of one one-
hundredths of a share of Preferred Stock so purchasable
immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of
Common Stock of the Company outstanding immediately prior
to the occurrence of the event and the denominator of
which shall be the total number of shares of Common Stock
of the Company outstanding immediately following the
occurrence of such event and (y) action shall be taken
such that each share of Common Stock of the Company
outstanding immediately after such event shall have
issued with respect to it that number of Rights which
each share of Common Stock of the Company outstanding
immediately prior to such event had issued with respect
to it. The adjustments provided for in this Section
11(p) shall be made successively whenever such a dividend
is declared or paid or such a subdivision, combination or
consolidation is effected. If an event occurs which
would require an adjustment under Section 11(a)(ii) and
this Section 11(p), the adjustments provided for in this
Section 11(p) shall be in addition and prior to any
adjustment required pursuant to Section 11(a)(ii).
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock of the Company, a
copy of such certificate and (c) mail a brief summary
thereof to each holder of a Rights Certificate (or if
prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock of the
Company) in accordance with Section 25 hereof.
Notwithstanding the foregoing sentence, the failure of
the Company to prepare such certificate or statement or
make such filings or mailings shall not affect the
validity of, or the force or effect of, the requirement
for such adjustment. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event (a "Section 13 Event")
that, on or after the Stock Acquisition Date, directly or
indirectly, (x) the Company shall consolidate or
otherwise combine with, or merge with or into, any other
Person or Persons (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation, combination
or merger, (y) any Person or Persons (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof) shall consolidate or combine
with, or merge with or into, the Company, and the Company
shall be the continuing or surviving corporation of such
consolidation, combination or merger and, in connection
with such consolidation, combination or merger, all or
part of the outstanding shares of Common Stock of the
Company shall be changed into or exchanged for stock or
other securities of any other Person or Persons or cash
or any other property or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one transaction or
a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole and
calculated on the basis of the Company's most recent
regularly prepared financial statements) to any Person or
Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which
complies with Section 11(o) hereof); provided, however,
that this clause (z) of Section 13(a) shall not apply to
the pro rata distribution by the Company of assets
(including securities) of the Company or any of its
Subsidiaries to all holders of the Company's Common
Stock; then, and in each such case (except as may be
contemplated by Section 13(d) hereof), proper provision
shall be made so that: (i) each holder of a Right, except
as provided in Section 7(e) hereof, shall, on or after
the later of (A) the date of the first occurrence of any
such Section 13 Event or (B) the date of the expiration
of the period within which the Rights may be redeemed
pursuant to Section 23 hereof (as the same may be amended
or reinstated as provided in Section 26 or Section 31
hereof, respectively), have the right to receive, upon
the exercise thereof at the then current Purchase Price
in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid,
nonassessable and freely tradeable shares of Common Stock
of the Principal Party, not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number
of such one one-hundredths of a share for which a Right
was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and
(2) dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes
of this Agreement) by 50% of the Current Market Price per
share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any
transaction described in clause (x) or (y) of
the first sentence of Section 13(a) hereof, (A)
the Person that is the issuer of any securities
into which shares of Common Stock of the
Company are converted, changed or exchanged in
such merger, consolidation or combination, or
if there is more than one such issuer, the
issuer the Common Stock of which has the
greatest market value or (B) if no securities
are so issued, the Person that is the other
party to such merger (and survives the merger),
consolidation or combination (or if there is
more than one such Person, the Person the
Common Stock of which has the greatest value),
or if the other party to the merger does not
survive the merger, the Person that does
survive the merger (including the Company if it
survives); and
(ii) in the case of any
transaction described in clause (z) of the
first sentence of Section 13(a), the Person
that is the party receiving the greatest
portion of the assets or earning power
transferred pursuant to such transaction or
transactions or, if each Person that is a party
to such transaction or transactions receives
the same portion of the assets or earning power
so transferred or if the Person receiving the
greatest portion of the assets or earning power
cannot be determined, whichever of such Persons
as is the issuer of the Common Stock having the
greatest aggregate market value;
provided, however, that in any such case, (1) 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; (2) if the Common Stock of such Person is not and
has not been so registered and 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 (3)
if the Common Stock of such Person is not and has not
been so registered and 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 (1) and (2) 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 13 in the same
ratio as their direct or indirect interests in such
Person bear to the total of such interests.
(c) The Company shall not consummate any
Section 13 Event unless the Principal Party shall have a
sufficient number of authorized shares of its Common
Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto
the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental
agreement confirming that the requirements of Sections
13(a) and (b) hereof shall promptly be performed in
accordance with their terms and that such Section 13
Event shall not result in a default by the Principal
Party under this Agreement as the same shall have been
assumed by the Principal Party pursuant to Sections 13(a)
and (b) hereof and further providing that, as soon as
practicable after the date of such Section 13 Event, 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 Act) until the Expiration
Date and to similarly comply with applicable
state securities laws;
(ii) use its best efforts to
list or obtain quotation of (or continue the
listing or quotation of) the Rights and the
securities purchasable upon exercise of the
Rights on a national securities exchange or
automated quotation service;
(iii) will deliver to holders of
the Rights historical financial statements for
the Principal Party and each of its Affiliates
which comply in all respects with the
requirements for registration on Form 10 (or
any successor form) under the Exchange Act; and
(iv) use its best efforts to
obtain waivers of any rights of first refusal
or preemptive rights in respect of the shares
of Common Stock of the Principal Party subject
to purchase upon exercise of outstanding
Rights.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
(d) Notwithstanding anything in this
Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in subparagraph (x)
or (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons (or a wholly owned
subsidiary of any such Person or Persons) who acquired
shares of Common Stock of the Company pursuant to a
tender offer or exchange offer for all outstanding shares
of Common Stock of the Company which complies with the
exception provided for in Section 11(a)(ii) hereof, (ii)
the price per share of Common Stock of the Company
offered in such transaction is not less than the price
per share of Common Stock paid to all holders of shares
of Common Stock of the Company whose shares were
purchased pursuant to such tender offer or exchange offer
and (iii) the form of consideration being offered to the
remaining holders of shares of Common Stock pursuant to
such transaction is the same as the form of consideration
paid pursuant to such tender offer or exchange offer.
Upon consummation of any such transaction contemplated by
this Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(i) hereof, or
to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the
closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights 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 the Nasdaq National Market or the Nasdaq Stock Market
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 (with the concurrence of a
majority of the Continuing Trustees). If on any such
date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as
determined in good faith by the Board (with the
concurrence of a majority of the Continuing Trustees)
shall be used.
(b) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock) upon exercise of
the Rights or to distribute certificates which evidence
fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock). In lieu of
fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of
Preferred Stock, the Company may pay to the registered
holders of Rights 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
one-hundredth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-hundredth of a share of Preferred Stock shall
be one one-hundredth of the closing price of a share of
Preferred Stock or, if unavailable, the appropriate
alternative price (in each case as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately
prior to the date of such exercise.
(c) Following the occurrence of a
Triggering Event, the Company shall not be required to
issue fractions of shares of Common Stock of the Company
upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Common Stock of the
Company. In lieu of fractional shares of Common Stock of
the Company, the Company may pay to the registered
holders of Rights 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
(1) share of Common Stock of the Company. For purposes
of this Section 14(c), the current market value of one
share of Common Stock shall be the closing price of one
share of Common Stock or, if unavailable, the appropriate
alternative price (in each case as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of such exercise.
(d) The holder of a Right by the
acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of
action in respect of this Agreement, except the rights of
action vested in the Rights Agent pursuant to Section 18
hereof, are vested in the respective registered holders
of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common
Stock of the Company); and any registered holder of any
Rights Certificate (or, prior to the Distribution Date,
of the Common Stock of the Company), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock of the Company), may, in his own behalf and
for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders
of Rights would not have an adequate remedy at law for
any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations
of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common Stock of the Company;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Shareholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of
one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of
a shareholder of the Company or any right to vote for the
election of trustees or upon any matter submitted to
shareholders at any meeting thereof, or to give or
withhold consent to any trust action, or to receive
notice of meetings or other actions affecting
shareholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the
Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected
and shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or
document reasonably believed by it to be genuine and to
be signed, executed and, where necessary, verified or
acknowledged by the proper Person or Persons.
Section 19. Merger or Consolidation or Change
of Name of Rights Agent.
(a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a
party, or any corporation succeeding to the corporate
trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such
corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. If at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of
the Rights Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt
the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and if
at that time any of the Rights Certificates shall not
have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name
of the predecessor or in the name of the successor Rights
Agent; and in all such cases, such Rights Certificates
shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) If at any time the name of the Rights
Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its
changed name; and in all such cases, such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The
Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with
legal counsel (who may be legal counsel for the Company),
and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person and the determination of the Current
Market Price) be proved or established by the Company
prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer
of the Company and delivered to the Rights Agent; and
such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates, nor shall it be required to verify the same
(except as to its countersignature on such Rights
Certificates), but all such statements and recitals are
and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereon); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Rights Certificate; nor shall it be responsible
for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or Preferred
Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company, and
to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct; provided,
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Rights
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise or transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
30 days' notice in writing mailed to the Company, and to
each transfer agent of the Common Stock and Preferred
Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail.
The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights
Agent or by the holder of a Rights Certificate (who
shall, with such notice, submit his Rights Certificate
for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court
of competent jurisdiction for the appointment of a new
Rights Agent. If no successor Rights Agent shall have
been appointed within 30 days from effectiveness of such
removal or resignation, and no registered holder of any
Rights Certificates have applied pursuant to this
Agreement for the appointment of a new Rights Agent, the
Company shall be automatically designated as successor
Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a)
a corporation organized and doing business under the laws
of the United States or of any state of the United States
so long as such corporation is authorized to do business
as a banking institution in such state, is in good
standing, is authorized under such laws to exercise
corporate trust powers, is subject to supervision or
examination by federal or state authority and has at the
time of its appointment as Rights Agent a combined
capital and surplus of at least $100,000,000 or (b) an
Affiliate of a corporation described in clause (a) of
this sentence. After appointment, the successor Rights
Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time
held by it hereunder and shall execute and deliver any
further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any
such appointment, the Company shall file notice thereof
in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and the Preferred
Stock and shall mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. Issuance of New Rights
Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights Certificates to the
contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may
be approved by the Board to reflect any adjustment or
change in the Purchase Price and the number or kind or
class of shares or other securities or property
purchasable under the Rights Certificates made in
accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of
shares of Common Stock of the Company following the
Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with
respect to shares of Common Stock of the Company so
issued or sold pursuant to the exercise of stock options
or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the
Board, issue Rights Certificates representing the
appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such
Rights Certificate shall be issued if, and to the extent
that, the Company shall be advised by counsel that such
issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued, and (ii) no
such Rights Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board may (following the Stock
Acquisition Date, only with the concurrence of a majority
of the Continuing Trustees), at its option, at any time
prior to the earlier of (i) the Close of Business on the
tenth Business Day following the Stock Acquisition Date
(or, if the Stock Acquisition Date shall have occurred
prior to the Record Date, the Close of Business on the
tenth Business Day following the Record Date) or (ii) the
Final Expiration Date, direct the Company to, and if so
directed, the Company shall, redeem all but not less than
all of the then outstanding Rights at a redemption price
of $.01 per Right, as such amount may be 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"). Notwithstanding anything contained
in this Agreement to the contrary, the Rights shall not
be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at
its option, pay the Redemption Price in cash, shares of
Common Stock of the Company (based on the Current Market
Price of the Common Stock at the time of redemption) or
any other form of consideration deemed appropriate by the
Board.
(b) Immediately upon the action of the
Board (with, if required, the concurrence of a majority
of the Continuing Trustees) ordering the redemption of
the Rights, evidence of which shall have been filed with
the Rights Agent 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 for each
Right so held. Promptly after the action of the Board
ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and
the holders of the then outstanding Rights by mailing
such notice to all such holders at each holder's last
address as it appears upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common
Stock. 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.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), 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 transaction or a series of related transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give
to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 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 Preferred Stock, 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 twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock
for purposes of such action, and in the case of any such
other action, at least twenty (20) 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
Preferred Stock, whichever shall be the earlier.
(b) In case any of the events set forth
in Section 11(a)(ii) hereof shall occur, then, in any
such case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate,
to the extent feasible and in accordance with Section 25
hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Common Stock of the Company and/or, if appropriate, other
securities.
Section 25. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Rights Agent) as follows:
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Attention: President
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Company) as follows:
State Street Bank and Trust Company
c/o Boston Financial Data Services
The BFDS Building
Two Heritage Drive, 4th Floor
North Quincy, Massachusetts 02171
Attention: Client Administrator
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock of the Company) shall
be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the
address of such holder as shown on the registry books of
the Company.
Section 26. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company and the Rights
Agent shall, if the Board so directs, supplement or amend
any provision of this Agreement without the approval of
any holders of certificates representing shares of Common
Stock of the Company. From and after the Distribution
Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if
the Board so directs, supplement or amend this Agreement
without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein
which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time
period hereunder (which shortening or lengthening, after
the Stock Acquisition Date, shall require the concurrence
of a majority of such Continuing Trustees) or (iv) to
change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of any such Person);
provided, this Agreement may not be supplemented or
amended to lengthen, pursuant to clause (iii) of this
sentence (A) a time period relating to when the Rights
may be redeemed or to modify the ability (or inability of
the Board (with, where required, the concurrence of a
majority of the Continuing Trustees) to redeem the
Rights, in either case at such time as the Rights are not
then redeemable or (B) any other time periods unless such
lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the
holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of any such Person). Upon the
delivery of a certificate from an appropriate officer of
the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section
26, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number
of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable. Prior to the Distribution
Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of
Common Stock of the Company.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 28. Determinations and Actions by the
Board, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock of
the Company outstanding at any particular time, including
for purposes of determining the particular percentage of
such outstanding shares of Common Stock of the Company of
which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule 13d-
3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board (with, where specifically
provided for herein, the concurrence of Continuing
Trustees) shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and
powers specifically granted to the Board (with, where
specifically provided for herein, the concurrence of
Continuing Trustees) or to the Company, or as may be
necessary or advisable in the administration of this
Agreement including, without limitation, the right and
power to (a) interpret the provisions of this Agreement
and (b) make all determinations deemed necessary or
advisable for the administration of this Agreement
(including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations
(including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done
or made by the Board (with, where specifically provided
for herein, the concurrence of Continuing Trustees), the
Continuing Trustees, the Outside Trustees or the Company
in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the
Rights and all other parties and (y) not subject the
Board, the Continuing Trustees or the Outside Trustees to
any liability to the holders of the Rights.
Section 29. Exchange.
(a) The Board (with the concurrence of
the Continuing Trustees) may, at its option, at any time
after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become
void pursuant to the provision of Section 7(e) hereof)
for shares of Common Stock of the Company at an exchange
ratio of one share of Common Stock of the Company 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"). Notwithstanding
the foregoing, the Board shall not be empowered to effect
such exchange at any time after any Person (other than an
Exempt Person) becomes the Beneficial Owner of 50% or
more of the shares of Common Stock of the Company then
outstanding.
(b) Immediately upon the action of the
Board ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 29 and without any further
action and without 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 Common Stock of the Company equal to the number
of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public
notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all
of the holders of such Rights at their last addresses as
they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books
of the Transfer Agent for the Common Stock. 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 Common
Stock of the Company for Rights will be effected and, in
the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be
affected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the
provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In any exchange pursuant to this
Section 29, the Company, at its option, may substitute
Preferred Stock (or Equivalent Preferred Stock, as such
term is defined in Section 11(b) hereof) for shares of
Common Stock of the Company exchangeable for Rights, at
the initial rate of one one-hundredth of a share of
Preferred Stock (or Equivalent Preferred Stock) for each
share of Common Stock of the Company, as appropriately
adjusted to reflect adjustment in the voting rights of
the Preferred Stock pursuant to Exhibit A hereto, so that
the fraction of a share of Preferred Stock delivered in
lieu of each share of Common Stock of the Company shall
have the same voting rights as one share of Common Stock
of the Company.
(d) In the event that there shall not be
sufficient shares of Common Stock of the Company issued
but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with
this Section 29, the Company shall take all such action
as may be necessary to authorize additional shares of
Common Stock of the Company for issuance upon exchange of
the Rights.
(e) The Company shall not be required to
issue fractions of shares of Common Stock of the Company
or to distribute certificates which evidence fractional
shares of Common Stock of the Company. In lieu of such
fractional shares of Common Stock of the Company, there
shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional shares
of Common Stock of the Company would otherwise be
issuable an amount in cash equal to the same fraction of
the current market value of a whole share of Common Stock
of the Company. For the purposes of this paragraph (e),
the current market value of a whole share of Common Stock
of the Company shall be the closing price of a share of
Common Stock of the Company or, if unavailable, the
appropriate alternative price (in each case as determined
pursuant to Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date on which the Board takes
action ordering an exchange pursuant to this Section 29.
Section 30. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the
Common Stock of the Company) any legal or equitable
right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of
the Company, the Rights Agent and the registered holders
of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock
of the Company).
Section 31. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board (with the concurrence of a majority of the
Continuing Trustees) determines in its good faith
judgment that severing the invalid language from this
Agreement would adversely affect the purpose or effect of
this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not
expire until the Close of Business on the tenth Business
Day following the date of such determination by the
Board. Without limiting the foregoing, if any provision
of this Agreement requiring that a determination be made
by the Board with the concurrence of a majority of the
Continuing Trustees or by the Continuing Trustees or the
Outside Trustees is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by
the Board in accordance with applicable law and the
Company's Declaration of Trust (as the same may be
amended and restated from time to time) and Bylaws.
Section 32. Governing Law. Except as required
by the law of the State of Maryland governing Maryland
real estate investment trusts, this Agreement, each Right
and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the
Commonwealth of Massachusetts and shall for all purposes
be governed by and construed in accordance with the laws
of Massachusetts applicable to contracts made and to be
performed entirely within Massachusetts, including
Massachusetts principles of conflicts of law. The rights
and duties of the Rights Agent hereunder shall be
governed by the laws of the Commonwealth of
Massachusetts, including its principles of conflicts of
law.
Section 33. Counterparts. This Agreement may
be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed under seal as
of the day and year first above written.
Attest: HEALTH AND RETIREMENT
PROPERTY TRUST
By Gerard M. Martin By John G. Murray
Name: Gerard M. Martin Name: John G. Murray
Title: Trustee Title: Treasurer
Attest: STATE STREET BANK
AND TRUST COMPANY,
as Rights Agent
By Steven Cesso By Ronald E. Logue
Name: Steven Cesso Name: Ronald E. Logue
Title: Associate Counsel Title: Executive Vice
President
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Exhibit A
HEALTH AND RETIREMENT PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
HEALTH AND RETIREMENT PROPERTIES TRUST, a Maryland real
estate investment trust, having its principal office in Baltimore
City, Maryland (hereinafter called the "Trust"), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Pursuant to authority expressly vested in the Board
of Trustees by Article VI, Section 6.1 of the Declaration of
Trust of the Trust, as amended and restated on July 1, 1994 (the
"Declaration"), the Board of Trustees has duly reclassified
1,000,000 unissued Preferred Shares, par value $.01 per share, of
the Trust (from among the 50,000,000 Preferred Shares, par value
$.01 per share, of the Trust which are authorized) into 1,000,000
Junior Participating Preferred Shares, par value $.01 per share,
of the Trust.
SECOND: The terms (including preferences, conversion or
other rights, voting powers, restrictions, limitations as to
dividends, qualifications, or terms or conditions of redemption)
of the Junior Participating Preferred Shares, par value $.01 per
share, are as follows:
1. Designation and Amount. The shares of such series shall
be designated as "Junior Participating Preferred Shares" and the
number of shares constituting such series shall be 1,000,000.
2. Dividends and Distributions.
(a) Subject to the prior and superior rights of
the holders of any shares of any series of Preferred
Shares ranking prior and superior to the Junior
Participating Preferred Shares with respect to
dividends (if any), the holders of Junior Participating
Preferred Shares shall be entitled to receive, when, as
and if declared by the Board out of funds legally
available for the purpose, quarterly dividends payable
in cash on the 15th day of March, June, September and
December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a Junior Participating
Preferred Share or fraction thereof, in an amount per
share (rounded to the nearest cent) equal to the
greater of (X) $5 or (Y) subject to the provision for
adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, plus
100 times the aggregate per share amount (payable in
kind) of all noncash dividends or other distributions
other than a dividend payable in Common Shares of
beneficial interest, par value $.01 per share, of the
Trust (the "Common Shares") or a subdivision of the
outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares, since the
immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any Junior
Participating Preferred Share or fraction thereof. In
the event the Trust shall at any time after October 17,
1994 (the "Rights Declaration Date") (i) declare any
dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares or (iii)
combine the outstanding Common Shares into a smaller
number of shares, then in each such case the amount to
which holders of shares of Junior Participating
Preferred Shares were entitled immediately prior to
such event under clause (Y) of the preceding sentence
shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of
Common Shares outstanding immediately after such event
and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such
event.
(b) The Board shall declare a dividend or
distribution on the Junior Participating Preferred
Shares as provided in paragraph (a) above immediately
after it declares a dividend or distribution on the
Common Shares (other than a dividend payable in Common
Shares); provided that, in the event no dividend or
distribution shall have been declared on the Common
Shares during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $5 per share on the Junior
Participating Preferred Shares shall nevertheless be
payable on such subsequent Quarterly Dividend Payment
Date.
(c) Dividends shall begin to accrue and be
cumulative on outstanding Junior Participating
Preferred Shares from the Quarterly Dividend Payment
Date next preceding the date of issue of such Junior
Participating Preferred Shares unless the date of issue
of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders
of Junior Participating Preferred Shares entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the Junior Participating Preferred Shares in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board may fix
a record date for the determination of holders of
Junior Participating Preferred Shares entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not less than 10
and not more than 60 days prior to the date fixed for
the payment thereof.
3. Voting Rights. The holders of Junior Participating
Preferred Shares shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each Junior Participating
Preferred Share shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the
shareholders of the Trust. In the event that the Board
shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Shares payable in Common
Shares, (ii) subdivide the outstanding Common Shares or
(iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the
number of votes per share to which holders of Junior
Participating Preferred Shares were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of
which is the number of Common Shares outstanding
immediately after such event and the denominator of
which is the number of Common Shares that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by
law, the holders of Junior Participating Preferred
Shares and the holders of Common Shares shall vote
together as one class on all matters submitted to a
vote of shareholders of the Trust.
(c)(i) If at any time dividends on any Junior
Participating Preferred Shares shall be in
arrears in an amount equal to six (6)
quarterly dividends thereon, the
occurrence of such contingency shall mark
the beginning of a period (a "Default
Period") which shall extend until such
time when all accrued and unpaid dividends
for all previous quarterly dividend
periods and for the current quarterly
dividend period on all Junior
Participating Preferred Shares then
outstanding shall have been declared and
paid or set apart for payment. During
each Default Period, all holders of
Preferred Shares (including holders of the
Junior Participating Preferred Shares)
with dividends in arrears in an amount
equal to six (6) quarterly dividends
thereon, voting as a class, irrespective
of series, shall have the right to elect
two (2) Trustees.
(ii) During any Default Period, such voting right of
the holders of Junior Participating Preferred
Shares may be exercised initially at a special
meeting called pursuant to subparagraph (iii)
of this Section 3(c) or at an annual meeting of
shareholders, and thereafter at annual meetings
of shareholders, provided that neither such
voting right nor the right of the holders of
any other series of Preferred Shares, if any,
to increase, in certain cases, the authorized
number of Trustees shall be exercised unless
the holders of ten percent (10%) in number of
Preferred Shares outstanding shall be present
in person or by proxy. The absence of a quorum
of the holders of Common Shares shall not
affect the exercise by the holders of Preferred
Shares of such voting right. At any meeting at
which the holders of Preferred Shares shall
exercise such voting right initially during an
existing Default Period, they shall have the
right, voting as a class, to elect Trustees to
fill up to two (2) vacancies, if any, in the
Board or, if such right is exercised at an
annual meeting, to elect two (2) Trustees. The
holders of Preferred Shares shall have the
right to make such increase in the number of
Trustees as shall be necessary to permit the
election by them at any special meeting of two
(2) Trustees. After the holders of Preferred
Shares shall have exercised their right to
elect Trustees in any Default Period and during
the continuance of such period, the number of
Trustees shall not be increased or decreased
except by vote of the holders of Preferred
Shares as herein provided or pursuant to the
rights of any equity securities ranking senior
to or pari passu with the Junior Participating
Preferred Shares, if any.
(iii) Unless the holders of Preferred Shares shall,
during an existing Default Period, have
previously exercised their right to elect
Trustees, the Board may order, or any
shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of
the total number of Preferred Shares
outstanding, irrespective of series, may
request, the calling of a special meeting of
the holders of Preferred Shares, which meeting
shall thereupon be called by the Board or the
Chief Executive Officer of the Trust. The
Secretary of the Trust shall give notice of
such meeting and of any annual meeting at which
holders of Preferred Shares are entitled to
vote pursuant to this paragraph (c)(iii) to
each holder of record of Preferred Shares by
mailing a copy of such notice to him at his
last address as the same appears on the books
of the Trust. Such meeting shall be called for
a time not earlier than fifteen (15) days and
not later than sixty (60) days after such order
or request. If such meeting is not called
within sixty (60) days after such order or
request, such meeting may be called on similar
notice by any shareholder or shareholders
owning in the aggregate not less than ten
percent (10%) of the total number of Preferred
Shares outstanding. Notwithstanding the
provisions of this paragraph (c)(iii), no such
special meeting shall be called during the
period within sixty (60) days immediately
preceding the date fixed for the next annual
meeting of the shareholders.
(iv) In any Default Period, the holders of Common
Shares, and (if applicable) other classes of
Shares of beneficial interest of the Trust (all
Trust shares being referred to as "Shares"),
shall continue to be entitled to elect the
whole number of Trustees until the holders of
Preferred Shares shall have exercised their
rights to elect two (2) Trustees voting as a
class, after the exercise of which right, (X)
the Trustees so elected by the holders of
Preferred Shares shall continue in office until
their successors shall have been elected by
such holders or until the expiration of the
Default Period, and (Y) any vacancy in the
Board shall (except as provided in paragraph
(c)(ii) of this Section 3) be filled by vote of
a majority of the remaining Trustees
theretofore elected by the holders of the class
or classes of Shares which elected the Trustee
whose office shall have become vacant.
References in this paragraph (c) to Trustees
elected by the holders of a particular class of
Shares shall include Trustees elected by such
Trustees to fill vacancies as provided in
clause (Y) of the foregoing sentence.
(v) Immediately upon the expiration of a Default
Period, (X) the right of the holders of
Preferred Shares as a class to elect Trustees
shall cease, (Y) the term of any Trustees
elected by the holders of Preferred Shares as a
class shall terminate, and (Z) the number of
Trustees shall be such number as may be
provided for in the Declaration, any Article
Supplementary or the By-Laws of the Trust,
irrespective of any increase made pursuant to
the provisions of paragraph (c)(ii) of this
Section 3 (such number being subject, however,
to change thereafter in any manner provided by
law, or in the Declaration, any Article
Supplementary or the By-Laws of the Trust).
Any vacancies in the Board effected by the
provisions of clauses (Y) and (Z) in the
preceding sentence may be filled by a majority
of the remaining Trustees.
(d) Except as set forth herein, holders of Junior
Participating Preferred Shares shall have no special
voting rights and their consent shall not be required
(except to the extent they are entitled to vote with
holders of Common Shares as set forth herein) for
taking any trust action.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Junior
Participating Preferred Shares as provided in Section 2
are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on Junior Participating Preferred Shares
outstanding shall have been paid in full, the Trust
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or
otherwise acquire for consideration any Shares
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Junior Participating Preferred Shares;
(ii) declare or pay dividends on or make any other
distributions on any Shares ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Junior
Participating Preferred Shares except dividends
paid ratably on the Junior Participating
Preferred Shares and all such parity Shares on
which dividends are payable or in arrears in
proportion to the total amounts to which the
holders of all such Shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration Shares ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Junior
Participating Preferred Shares provided that
the Trust may at any time redeem, purchase or
otherwise acquire any such parity Shares in
exchange for any Shares ranking junior (either
as to dividends or upon dissolution,
liquidation or winding up) to the Junior
Participating Preferred Shares;
(iv) purchase or otherwise acquire for consideration
any Junior Participating Preferred Shares, or
any Shares ranking on a parity with the Junior
Participating Preferred Shares, except pursuant
to Section 8 or in accordance with a purchase
offer made in writing or by publication (as
determined by the Board) to all holders of such
shares upon such terms as the Board, after
consideration of the respective annual dividend
rates and other relative rights and preferences
of the respective series and classes, shall
determine in good faith will result in fair and
equitable treatment among the respective series
or classes.
(b) The Trust shall not permit any subsidiary of
the Trust to purchase or otherwise acquire for
consideration any Shares of the Trust unless the Trust
could, under paragraph (a) of this Section 4, purchase
or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any Junior Participating Preferred
Shares, purchased or otherwise acquired by the Trust in any
manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued Preferred Shares and
may be reissued as part of a new series of Preferred Shares to be
created by resolution or resolutions of the Board, subject to the
conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Trust, no
distribution shall be made to the holders of Shares
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior
Participating Preferred Shares, unless, prior thereto,
the holders of Junior Participating Preferred Shares
shall have received $100.00 per share, plus an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such
payment (the "Liquidation Preference"). Following the
payment of the full amount of the Liquidation
Preference, no additional distributions shall be made
to the holders of Junior Participating Preferred
Shares, unless, prior thereto, the holders of Common
Shares shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by
dividing (i) the Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph (c)
below to reflect such events as stock splits, stock
dividends and recapitalization with respect to the
Common Shares) (such number in clause (ii) immediately
above being referred to as the "Adjustment Number").
Subject to the rights of any other series of Preferred
Shares then outstanding, if any, following the payment
of the full amount of the Liquidation Preference and
the Common Adjustment in respect of all outstanding
shares of Junior Participating Preferred Shares and
Common Shares, respectively, holders of Junior
Participating Preferred Shares and holders of shares of
Common Shares shall receive their ratable and
proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to
one (1) with respect to such Junior Participating
Preferred Shares and Common Shares, on a per Share
basis, respectively.
(b) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Liquidation Preference and the liquidation
preferences of all other series of Preferred Shares, if
any, which rank on a parity with the Junior
Participating Preferred Shares, then such remaining
assets shall be distributed ratably to the holders of
such parity Shares (including the Junior Participating
Preferred Shares) in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment after
satisfaction of the liquidation preferences of all
series of Preferred Shares, if any, then such remaining
assets shall be distributed ratably to the holders of
Common Shares.
(c) In the event the Trust shall at any time
after the Rights Declaration Date (i) declare any
dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares or (iii)
combine the outstanding Common Shares into a smaller
number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the
denominator of which is the number of shares of Common
Shares that were outstanding immediately prior to such
event.
7. Consolidation, Merger, etc. In case the Trust shall
enter into any consolidation, merger, combination or other
transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash or any other
property, then in any such case the Junior Participating
Preferred Shares shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the
aggregate amount of shares, securities, cash or any other
property (payable in kind), as the case may be, into which or for
which each Common Share is changed or exchanged. In the event
the Trust shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares or (iii) combine the
outstanding Common Shares into a smaller number of Shares, then
in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of Junior Participating
Preferred Shares shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding
immediately prior to such event.
8. Redemption. The Junior Participating Preferred Shares
shall not be redeemable.
9. Ranking. The Junior Participating Preferred Shares
shall rank junior to all other series of the Trust's Preferred
Shares as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide
otherwise.
10. Amendment. At such time as Junior Participating
Preferred Shares are outstanding, the Declaration shall not be
amended, nor shall an Article Supplemental of the Trust be filed
or amended, in any manner which would materially alter or change
the powers, preferences or special rights of the Junior
Participating Preferred Shares so as to affect them adversely
without the affirmative vote of the holders of a majority or more
of the outstanding Junior Participating Preferred Shares voting
separately as a class.
11. Fractional Shares. Junior Participating Preferred
Shares may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distri-
butions and have the benefit of all other rights of a holder of
Junior participating Preferred Shares.
IN WITNESS WHEREOF, HEALTH AND RETIREMENT PROPERTIES TRUST
has caused these Articles Supplementary to be signed in its name
and on its behalf by a majority of its entire Board of Trustees
and witnessed by its Secretary on _____________,____.
WITNESS: HEALTH AND RETIREMENT
PROPERTIES TRUST
____________________________ By:____________________________
Secretary Trustee
By:____________________________
Trustee
By:____________________________
Trustee
By:____________________________
Trustee
By:____________________________
Trustee
THE UNDERSIGNED, President of HEALTH AND RETIREMENT PROPERTIES
TRUST, with respect to the foregoing Articles Supplementary of which
this Certificate is made a part, hereby acknowledges in the name and
on behalf of said Trust, the foregoing Articles Supplementary to be
the act of said Trust and hereby certifies that the matters and facts
set forth herein with respect to the authorization and approval
thereof are true in all material respects under the penalties of
perjury.
____________________________
President
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Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On October 17, 1994, the Board of Trustees of
Health and Retirement Properties Trust (the "Company")
declared a dividend distribution of one right for each of
the Company's outstanding Common Shares of beneficial
interest, par value $.01 per share (the "Common Shares"),
to holders of record of the Common Shares at the close of
business on November 7, 1994. Each Right entitles the
registered holder to purchase from the Company one
one-hundredth of a Preferred Share of beneficial
interest, par value $.01 per share, of the Company (the
"Preferred Shares") or in certain circumstances, to
receive cash, property, Common Shares or other securities
of the Company, at a Purchase Price of $50 per one one-
hundredth of a Preferred Share, subject to adjustment
(the "Rights"). The description and terms of the Rights
are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and State Street Bank and
Trust Company, as Rights Agent.
Initially, the Rights will be attached to all
certificates representing the Common Shares and no
separate Rights Certificates will be distributed. The
Rights will separate from the Common Shares and a
Distribution Date will occur upon the earlier of (i) 10
business days (or such later date as the Company's Board
of Trustees may determine before a Distribution Date
occurs) following a public announcement by the Company
that a person or group of affiliated or associated
persons, with certain exceptions (an "Acquiring Person"),
has acquired, or has obtained the right to acquire,
beneficial ownership of 10% or more of the outstanding
Common Shares (the date of such announcement being the
"Share Acquisition Date") or (ii) 10 business days (or
such later date as the Company's Board of Trustees may
determine before a Distribution Date occurs) following
the commencement of a tender offer or exchange offer that
would result in a person becoming an Acquiring Person.
Until the Distribution Date, (i) the Rights
will be evidenced by the certificates for Common Shares
and will be transferred with and only with such Common
Share certificates, (ii) Common Share certificates will
contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any
certificates for Common Shares outstanding will also
constitute the transfer of the Rights associated with the
Common Shares represented by such certificates.
The Rights are not exercisable until the
Distribution Date and will expire at the close of
business on October 17, 2004, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Shares as of the close of business
on the Distribution Date and, from and after the
Distribution Date, the separate Rights Certificates alone
will represent the Rights.
In the event (a "Flip-In Event") a Person
becomes an Acquiring Person (except pursuant to a tender
or exchange offer for all outstanding Common Shares at a
price and on terms which a majority of the Company's
Outside Trustees (as defined in the Rights Agreement)
determines to be fair to and otherwise in the best
interests of the Company and its shareholders (a "fair
offer")), each holder of a Right will thereafter have the
right to receive, upon exercise of such Right, Common
Shares (or, in certain circumstances, cash, property or
other securities of the Company) having a Current Market
Price (as defined in the Rights Agreement) equal to two
times the exercise price of the Right. Notwithstanding
the foregoing, following the occurrence of any Flip-In
Event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain
related parties) will be null and void in the
circumstances set forth in the Rights Agreement.
However, Rights will not be exercisable following the
occurrence of any Flip-In Event until such time as the
Rights are no longer redeemable by the Company as set
forth below.
For example, at an exercise price of $50 per
Right, each Right not owned by an Acquiring Person (or by
certain related parties) following a Flip-In Event would
entitle its holder to purchase $100 worth of Common
Shares (or other consideration, as noted above) for $50.
Assuming that the Common Shares had a Current Market
Price of $12.50 at such time, the holder of each valid
Right would be entitled to purchase 8 Common Shares for
$50.
In the event (a "Flip-Over Event") that, at any
time on or after the Share Acquisition Date, (i) the
Company shall take part in a merger or other business
combination transaction (other than certain mergers that
follow a fair offer) and the Company shall not be the
surviving entity or (ii) the Company shall take part in a
merger or other business combination transaction in which
the Common Shares are changed or exchanged (other than
certain mergers that follow a fair offer) or (iii) 50% or
more of the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights which
previously have been voided, as set forth above) shall
thereafter have the right to receive, upon exercise, a
number of shares of common stock of the acquiring company
having a Current Market Price equal to two times the
exercise price of the Right. Flip-In Events and Flip-
Over Events are collectively referred to as "Triggering
Events."
The Purchase Price payable and the number of
Preferred Shares (or the amount of cash, property or
other securities) issuable upon exercise of the Rights
are subject to adjustment from time to time to prevent
dilution (i) in the event of a share dividend on, or a
subdivision, combination or reclassification of, the
Preferred Shares, (ii) if holders of the Preferred Shares
are granted certain rights or warrants to subscribe for
Preferred Shares or convertible securities at less than
the Current Market Price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
The Company is not required to issue fractional Preferred
Shares upon the exercise of any Right or Rights evidenced
hereby. In lieu thereof, a cash payment may be made, as
provided in the Rights Agreement.
At any time until 10 business days following
the Share Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per
Right, payable, at the option of the Company, in cash,
Common Shares or other consideration as the Board of
Trustees may determine. Immediately upon the
effectiveness of the action of the Company's Board of
Trustees ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of
Rights will be to receive the $.01 per Right redemption
price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a shareholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the
Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Shares (or cash,
property or other securities) of the Company or for
common stock of the acquiring company as set forth above.
The terms of the Rights, other than key
financial terms and the date on which the Rights expire,
may be amended by the Board of Trustees of the Company
prior to the Distribution Date. Thereafter, the
provisions of the Rights Agreement may be amended by the
Board of Trustees only in order to cure any ambiguity,
defect or inconsistency, to make changes which do not
adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person and
certain other related parties) or to shorten or lengthen
any time period under the Rights Agreement; provided,
however, that no amendment to lengthen the time period
governing redemption shall be made at such time as the
Rights are not redeemable.
A copy of the Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit
to a Registration Statement on Form 8-A dated October 20,
1994. A copy of the Rights Agreement is available free
of charge from the Company or the Rights Agent. This
summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to
the Rights Agreement, which is incorporated herein by
reference.
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Exhibit C
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER OCTOBER 17, 2004 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON, OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT), AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON.
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.](1)
Rights Certificate
HEALTH AND RETIREMENT PROPERTIES TRUST
This certifies that ,
or his or her 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 Agreement, dated
as of October 17, 1994 (the "Rights Agreement"), by and
between Health and Retirement Properties Trust, a
Maryland real estate investment trust (the "Company"),
and State Street Bank and Trust Company, a Massachusetts
trust company (the "Rights Agent"), to purchase from the
Company at any time prior to 5:00 P.M. (New York City
time), on October 17, 2004 at the office or offices of
the Rights Agent designated for such purpose, or at the
office or offices of its successors as Rights Agent, one
one-hundredth of a fully paid, nonassessable, Junior
Participating Preferred Share of beneficial interest, par
value $.01 per share, of the Company (the "Preferred
Stock"), or in certain circumstances, to receive cash,
property, Common Stock or other securities of the
Company, at a purchase price of $50 (the "Purchase
Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of
shares of Preferred Stock which may be purchased upon
________________
1 The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
exercise thereof) set forth above, and the Purchase Price
set forth above, are the number of Rights and the
Purchase Price as of November 7, 1994, respectively,
based on the Preferred Stock as constituted at such date.
Upon the occurrence of a Section 11(a)(ii)
Event (as such term is defined in the Rights Agreement),
if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person (as such
terms are defined in the Rights Agreement) which is
determined to have been involved in, caused or
facilitated such Section 11(a)(ii) Event, (ii) a
transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee after such Acquiring
Person, Associate or Affiliate becomes such or (iii)
under certain circumstances specified in the Rights
Agreement, a transferee of any such Acquiring Person,
Associate or Affiliate who becomes a transferee prior to
or concurrently with such Acquiring Person becoming such,
such Rights shall become null and void and no holder
hereof shall have any right with respect to such Rights
from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares of
Preferred Stock (or the amount of cash, property, Common
Stock or other securities) deliverable upon such exercise
of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening
of certain events, including those events specified in
Section 11(a)(ii) and Section 13 of the Rights Agreement.
This Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby
made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include
the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on
file at the offices of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal
office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate
or Rights Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate
number of shares of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be
exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate
or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may
be redeemed by the Company at a redemption price of $.01
per Right at any time prior to the earlier of the close
of business on (i) the tenth business day following the
first date of public announcement by the Company that an
Acquiring Person has become such (or if the date of such
announcement shall have occurred prior to October 17,
1994, the close of business on the tenth business day
following October 17, 1994) and (ii) the close of
business on October 17, 2004.
The Company is not required to issue fractional
shares of Preferred Stock upon the exercise of any Right
or Rights evidenced hereby. In lieu thereof, a cash
payment may be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such,
shall be entitled to vote or receive dividends or be
deemed for any purpose to be the holder of shares of
Preferred Stock, Common Stock or of any other securities
of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or
withhold consent to any trust action, or to receive
notice of meetings or other actions affecting
shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced
by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company [and its seal].
Dated as of .
ATTEST: HEALTH AND RETIREMENT
PROPERTIES TRUST
____________________ By __________________________
[Name] [Name]
Secretary [Title]
Countersigned:
[Rights Agent]
By______________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all rights, title
and interest therein, and does hereby irrevocably
constitute and appoint Attorney, to
transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated:
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate
or Associate of any such Person (as such terms are
defined in the Rights Agreement); and
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of any such
Person.
Dated:
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Form of
Assignment and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder
desires to exercise Rights represented by the Rights
Certificate.)
To: HEALTH AND RETIREMENT PROPERTIES TRUST
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or Common Stock
or such other securities of the Company or of any other
person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be
issued in the name of and delivered to:
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 Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number ___________________
(Please print name and address)
Dated:
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person
(as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person
or an Affiliate or Associate of any such Person.
Dated:
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Form of Election
to Purchase and Certificate must correspond to the name
as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or
any change whatsoever.
