SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
________________
Meridian Point Realty Trust VIII Co.
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(Exact name of registrant as specified in its charter)
Delaware 94-3058019
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(State of incorporation (I.R.S. employer
or organization) identification no.)
655 Montgomery Street, Suite 800
San Francisco, California
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(Address of principal executive offices)
94111
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(zip code)
________________
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be registered to be registered
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Preferred Stock Purchase Rights American Stock Exchange
Preferred Stock Exchange Rights American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE
REGISTERED.
On November 14, 1997, the Board of Trustees of
Meridian Point Realty Trust VIII Co. (the "Company") adopted
a Shareholder Rights Plan, providing that (a) one Purchase
Right will be attached to each share of common stock, par
value $0.001 per share, of the Company (the "Common Stock")
and to each share of preferred stock, par value $0.001 per
share, of the Company (the "Preferred Stock"), and (b) one
Exchange Right will be attached to each share of Common
Stock. The Purchase Rights and Exchange Rights
(collectively hereinafter referred to as the "Rights"), will
be issued on November 30, 1997. The Purchase Rights will
entitle the registered holder to purchase from the Company
2.9 shares of Preferred Stock at a purchase price of $32 per
share (the "Purchase Price"), subject to adjustment. The
Exchange Rights will entitle the registered holder to
receive one share of Preferred Stock for each share of
Common Stock, upon surrender of the Common Stock and payment
of the difference between the market value of the Common
Stock and the market value of the Preferred Stock as of a
date specified in the Rights Agreement (the "Exchange
Price"). The description and terms of the Rights are set
forth in the Rights Agreement (the "Rights Agreement"),
dated as of November 14, 1997, between the Company and First
Chicago Trust Company of New York, a New York corporation,
as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all
Preferred Stock and Common Stock certificates representing
shares then outstanding, and no separate Rights
certificates will be distributed. The Rights will
separate from the Preferred Stock and Common Stock upon
the earlier of (i) 10 business days following a public
announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of
(a) 15% or more of the outstanding shares of Preferred
Stock (the "Preferred Stock Threshold"), (b) 50% or more
of the outstanding shares of Common Stock (the "Common
Stock Threshold") or (c) shares of Common Stock and/or
Preferred Stock in amounts equal to percentages of the
Common Stock Threshold and the Preferred Stock Threshold
which total at least 100% (e.g. beneficial ownership of
shares of Common Stock in an amount equal to 67% of 50% of
the outstanding shares of Common Stock, and of shares of
Preferred Stock in an amount equal to 33% of 15% of the
outstanding shares of Preferred Stock) (the "Capital Stock
Threshold") (the earlier of (a), (b) or (c), the "Stock
Acquisition Date") or (ii) 10 business days following the
commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning
shares of Common Stock and/or Preferred Stock, as the case
may be, in an amount equaling or exceeding the Common
Stock Threshold, the Preferred Stock Threshold or the
Capital Stock Threshold (the earlier of (i) and (ii), the
"Distribution Date"). Until the Distribution Date, (i)
the Rights will be evidenced by the Preferred Stock and
Common Stock certificates and will be transferred with and
only with such Preferred Stock and Common Stock
certificates, (ii) new Preferred Stock and Common Stock
certificates will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Preferred Stock or Common
Stock outstanding will also constitute the transfer of the
Rights associated with the Preferred Stock or Common Stock
represented by such certificate.
The Purchase Rights are not exercisable until
the Distribution Date and the Exchange Rights are not
exercisable until the Stock Acquisition Date. All Rights
will expire at the close of business on November 30, 2007,
unless earlier redeemed by the Company, as described
below. At no time will the Rights have any voting power.
As soon as practicable after the Distribution
Date, Rights certificates will be mailed to holders of
record of the Preferred Stock and Common Stock as of the
close of business on the Distribution Date and,
thereafter, the separate Rights certificates alone will
represent the Rights. Except as otherwise determined by
the Board of Trustees of the Company, only shares of
Preferred Stock and Common Stock outstanding prior to the
Distribution Date will be issued with Rights.
In the event that a person becomes an Acquiring
Person (unless such acquisition is made pursuant to a
tender or exchange offer for all outstanding shares of the
Company, at a price and on terms determined by at least a
majority of the trustees of the Company who (i) are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person, (ii) are not officers of the Company,
and (iii) were elected to the Board of Trustees prior to
the Stock Acquisition Date (the "Continuing Trustees") (or
who were elected to the Board of Trustees after the Stock
Acquisition Date and whose nomination or election was
approved by a majority of the Continuing Trustees), to be
not inadequate and to be otherwise in the best interests
of the Company and its shareholders after receiving advice
from one or more investment banking firms (a "Qualified
Offer")), the Purchase Price for each Purchase Right will
thereafter be reduced to $1.00 per share and the Exchange
Rights will become exercisable on the terms described
above. (In certain circumstances, as described in the
Rights Agreement, holders of Rights will have the right to
receive cash, property, or other securities of the Company
in lieu of Preferred Stock). Notwithstanding any of the
foregoing, following the occurrence of any of the events
set forth in this paragraph (the "Flip-in Events"), all
Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights
are not exercisable following the occurrence of any of the
Flip-in Events set forth above until such time as the
Rights are no longer redeemable by the Company, as set
forth below.
In the event that following the Stock
Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is
not the surviving corporation (other than a merger
consummated pursuant to a Qualified Offer), (ii) the
Company engages in a merger or business combination
transaction in which the Company is the surviving
corporation and the Preferred Stock is changed or
exchanged or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a
Purchase Right (except Purchase Rights which have
previously been voided as set forth above) shall
thereafter have the right to receive, upon exercise of the
Purchase Right, common stock of the acquiring company
having a value equal to 2.9 shares of Preferred Stock, and
each holder of an Exchange Right (except Exchange Rights
which have previously been voided as set forth above)
shall thereafter have the right to receive, upon exercise
of the Exchange Right and surrender of one share of Common
Stock, common stock of the acquiring company having a
value equal to one share of Preferred Stock.
The Purchase Price payable and the number of
shares of Preferred Stock or other securities or property
issuable upon exercise of the Purchase Rights are subject
to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market
price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above). The
Exchange Rights are not subject to such adjustments.
With certain exceptions, no adjustments in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
At any time until ten business days following
the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.001 per
Right. Immediately upon the action of the 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 $0.001 redemption price.
Notwithstanding the foregoing, the Rights generally may
not be redeemed for 180 days following a change in a
majority of the Board as a result of a proxy contest.
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 Preferred Stock (or
other consideration) of the Company, as set forth above.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Trustees of the Company prior to the Distribution
Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended by the Board of Trustees
in order to cure any ambiguity, to correct or supplement
any provision of the Rights Agreement that may be
defective or inconsistent with any other provision
thereof, to make changes which do not adversely affect the
interests of holders of Rights (other than an Acquiring
Person), or to shorten or lengthen any time period under
the Rights Agreement; provided, however, that no
amendment to adjust the time period governing redemption
shall be made at such time as the Rights are not
redeemable.
The Rights have certain anti-takeover effects.
The Rights will cause substantial dilution to a person or
group that attempts to acquire the Company in certain
circumstances. Accordingly, the existence of the Rights
may deter certain acquirors from making takeover proposals
or tender offers. The Rights, however, are not intended
to prevent a takeover but rather are designed to enhance
the ability of the Board of Trustees to negotiate with a
potential acquiror on behalf of all of the shareholders.
The Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, which
includes as Exhibit A the Form of Purchase Rights
Certificate and includes as Exhibit B the form of Exchange
Rights Certificate, is attached hereto as Exhibit 1 and is
incorporated herein by reference. The foregoing
description of the Rights does not purport to be complete
and is qualified in its entirety by reference to Exhibit 1
hereto.
ITEM 2. EXHIBITS.
1. Rights Agreement, dated as of November 14,
1997, between Meridian Point Realty Trust VIII Co., and
First Chicago Trust Company of New York, as Rights Agent,
which includes as Exhibit A thereto the Form of Purchase
Rights Certificate and as Exhibit B thereto the form of
Exchange Rights Certificate.
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.
MERIDIAN POINT REALTY TRUST VIII CO.
By: /s/ Robert H. Gidel
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Name: Robert H. Gidel
Title: Chief Executive Officer
Date: November 21, 1997
EXHIBIT INDEX
Exhibit Description Page
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1 Rights Agreement, dated as of 7
November 14, 1997, between Meridian
Point Realty Trust VIII Co. and First
Chicago Trust Company of New York, as
Rights Agent, which includes as
Exhibit A thereto the Form of
Purchase Rights Certificate and as
Exhibit B thereto the Form of
Exchange Rights Certificate.
Meridian Point Realty Trust VIII Company
and
First Chicago Trust Company of New York
as Rights Agent
-----------------------------
Rights Agreement
Dated as of November 14, 1997
TABLE OF CONTENTS
Section Page
1. Certain Definitions . . . . . . . . . . . 1
2. Appointment of Rights Agent . . . . . . . 8
3. Issuance of Rights Certificates . . . . . 8
4. Form of Rights Certificates . . . . . . . 11
5. Countersignature and Registration . . . . 12
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . 13
7. Exercise of Rights; Purchase Price;
Exchange Price; Expiration Date of Rights 14
8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . 18
9. Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . 18
10. Preferred Stock Record Date . . . . . . . 21
11. Adjustment of Purchase Price, Exchange
Price, Number and Kind of Shares or
Number of Rights . . . . . . . . . . . . . 21
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 32
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 33
14. Fractional Rights and Fractional Shares . 37
15. Rights of Action . . . . . . . . . . . . . 38
16. Agreement of Rights Holders . . . . . . . 39
17. Rights Certificate Holder Not Deemed a
Shareholder . . . . . . . . . . . . . . . 40
18. Concerning the Rights Agent . . . . . . . 40
19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 41
20. Duties of Rights Agent . . . . . . . . . . 42
21. Change of Rights Agent . . . . . . . . . . 44
22. Issuance of New Rights Certificates . . . 46
23. Redemption and Termination . . . . . . . . 46
24. [INTENTIONALLY OMITTED] . . . . . . . . . 48
25. Notice of Certain Events . . . . . . . . . 48
26. Notices . . . . . . . . . . . . . . . . . 49
27. Supplements and Amendments . . . . . . . . 50
28. Successors . . . . . . . . . . . . . . . . 51
29. Determinations and Actions by the Board,
etc. . . . . . . . . . . . . . . . . . . 51
30. Benefits of this Agreement . . . . . . . . 51
31. Severability . . . . . . . . . . . . . . . 52
32. Governing Law . . . . . . . . . . . . . . 52
33. Counterparts . . . . . . . . . . . . . . . 52
34. Descriptive Headings . . . . . . . . . . . 53
Exhibit A -- Form of Purchase Rights Certificate
Exhibit B -- Form of Exchange Rights Certificate
Exhibit C -- Summary of Rights to Purchase Preferred Stock and
Rights to Exchange Common Stock
RIGHTS AGREEMENT
This RIGHTS AGREEMENT, dated as of November 14, 1997
(this "Agreement"), between Meridian Point Realty Trust VIII
Company, a Missouri corporation (the "Company"), and First
Chicago Trust Company of New York, a New York corporation, as
rights agent (the "Rights Agent"),
W I T N E S S E T H
WHEREAS, on November 14, 1997 (the "Rights Dividend
Declaration Date"), the Board of Trustees of the Company (the
"Board") authorized and declared a dividend distribution of one
Purchase Right for each share of Common Stock of the Company (the
"Common Stock") and each share of Preferred Stock of the Company
(the "Preferred Stock", and together with the Common Stock the
"Capital Stock") outstanding at the close of business on November
30, 1997 (the "Record Date"), and has authorized the issuance of
one Purchase Right for each share of Capital Stock issued between
the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date (as defined below),
each Purchase Right initially representing the right to purchase
2.9 shares of Preferred Stock, upon the terms and subject to the
conditions set forth below (the "Purchase Rights"); and
WHEREAS, on the Rights Dividend Declaration Date, the
Board further authorized and declared a dividend distribution of
one Exchange Right for each share of Common Stock outstanding at
the close of business on the Record Date and has authorized the
issuance of one Exchange Right for each share of Common Stock
issued between the Record Date (whether originally issued or
delivered from the Company's treasury) and the Distribution Date,
each Exchange Right initially representing the right to exchange
each such share of Common Stock for one share of Preferred Stock,
upon the terms and subject to the conditions set forth below (the
"Exchange Rights", and together with the Purchase Rights, 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 (a) fifty percent (50%)
or more of the shares of Common Stock then outstanding, (b)
fifteen percent (15%) or more of the shares of Preferred Stock
then outstanding, or (c) shares of Common Stock, Preferred Stock,
or a combination thereof, in an amount equal to or in excess of
the Capital Stock Ownership Threshold (as defined below), but
shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company 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 and/or Preferred Stock then outstanding due to
the repurchase of shares of Common Stock and/or Preferred Stock
by the Company, unless and until any such Person shall purchase
or otherwise become the Beneficial Owner of additional shares of
Common Stock, Preferred Stock, or a combination thereof,
constituting 1% or more of the then outstanding shares of Capital
Stock, or (vi) any Exempted Person.
(b) "Act" shall mean the Securities Act of 1933,
as amended.
(c) "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.
(d) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates, 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 such Person or any of such Person's
Affiliates or Associates until such tendered securities
are accepted for purchase or exchange, (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 Rights were
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 (the
"Original Rights") or 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 subsection (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 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 the proviso to subsection (ii) of this
subsection (e)) or disposing of any voting securities
of the Company;
provided, however, that nothing in this subsection (e) 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; and
provided further, however, that any shareholder of the Company,
with affiliate(s), associate(s) or other Person(s) who may be
deemed representatives of it serving as trustee(s) of the
Company, shall not be deemed to beneficially own securities held
by other Persons as a result of (i) Persons affiliated or
otherwise associated with such shareholder serving as trustee or
taking any action in connection therewith, (ii) discussing the
status of its shares with the Company or other shareholders of
the Company similarly situated or (iii) voting or acting in a
manner similar to other shareholders similarly situated, absent a
specific finding by the Board of an express agreement among such
shareholders to act in concert with one another as shareholders
so as to cause, in the good faith judgment of the Board, each
such shareholder to be the Beneficial Owner of the shares held by
such other shareholder(s).
(e) "Board" shall have the meaning set forth in
the recital at the beginning of this Agreement.
(f) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive
order to close.
(g) "Capital Stock" shall mean the Common Stock
and the Preferred Stock.
(h) "Capital Stock Ownership Threshold" shall
mean, with respect to any Person that number of shares of Common
Stock, Preferred Stock or any combination thereof such that
X + Y = 1.0
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.5 X C .15 X P
Where:
X = the number of shares of Common Stock which
such Person beneficially owns:
Y = the number of shares of Preferred Stock which
such Person beneficially owns;
C = the number of then outstanding shares of
Common Stock, and
P = the number of then outstanding Shares of
Preferred Stock
(i) "Close of business" on any given date shall
mean 5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., New York City time, on the next succeeding Business
Day.
(j) "Common Stock" shall mean the common stock,
par value $.001 per share, of the Company, except that "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock of such Person with the
greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of
such Person.
(k) "Continuing Trustee" shall mean any 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 Trustees then on the
Board.
(l) "Current Market Price" shall have the meaning
set forth in Section 11(d)(i) hereof.
(m) "Current Value" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(n) "Distribution Date" shall have the meaning
set forth in Section 3(a) hereof.
(o) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended and in effect on the date of
this Agreement.
(p) "Exchange Price" shall have the meaning set
forth in Section 4(a) hereof.
(q) "Exchange Rights" shall have the meaning set
forth in the recital at the beginning of this Agreement.
(r) "Exchange Rights Certificate" shall have the
meaning set forth in Section 3(a) hereof.
(s) "Exempted Person" shall mean any Person who
(i) is the Beneficial Owner, on the date hereof, of securities
representing (a) fifty percent (50%) or more of the shares of
Common Stock outstanding on the date hereof, (b) fifteen percent
(15%) or more of the shares of Preferred Stock outstanding on the
date hereof, or (c) shares of Common Stock, Preferred Stock, or a
combination thereof, in an amount equal to or in excess of the
Capital Stock Ownership Threshold, and such Person's Affiliates
and Associates, unless and until such Person and/or such Person's
Affiliates or Associates acquire Beneficial Ownership of
additional shares of Common Stock, Preferred Stock or a
combination of Common Stock and Preferred Stock representing one
percent (1%) or more of the shares of Capital Stock then
outstanding, or (ii) becomes, after the date hereof, the
Beneficial Owner of securities representing (x) fifty percent
(50%) or more of the then outstanding shares of Common Stock (y)
fifteen percent (15%) or more of the then outstanding shares of
Preferred Stock, or (z) shares of Common Stock, Preferred Stock
or a combination thereof, in an amount equal to or in excess of
the Capital Stock Ownership Threshold, as a result of a Qualified
Offer.
(t) "Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(u) "Final Expiration Date" shall mean the close
of business on November 30, 2007.
(v) "Market Value" shall have the meaning set
forth in Section 7(b)(ii) hereof.
(w) "NASDAQ" shall mean the National Association
of Securities Dealers Automated Quotation System.
(x) "Person" shall mean any individual, firm
corporation, partnership or other entity.
(y) "Preferred Stock" shall mean the Preferred
Stock par value $.001 per share, of the Company.
(z) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(aa) "Purchase Price" shall have the meaning set
forth in Section 4(a) hereof.
(ab) "Purchase Rights" shall have the meaning set
forth in the recital at the beginning of this Agreement
(ac) "Purchase Rights Certificates" shall have
the meaning set forth in Section 3(a) hereof.
(ad) "Qualified Offer" shall have the meaning set
forth in Section 11(a)(ii) hereof.
(ae) "Record Date" shall have the meaning set
forth in the recital at the beginning of this Agreement.
(af) "Redemption Price" shall have the meaning
set forth in Section 23(a) hereof.
(ag) "Rights" shall have the meaning set forth in
the recital at the beginning of this Agreement.
(ah) "Rights Agent" shall have the meaning set
forth in the introductory paragraph of this Agreement.
(ai) "Rights Certificate(s)" shall mean the
Purchase Rights Certificates and/or the Exchange Rights
Certificates, as applicable.
(aj) "Rights Dividend Declaration Date" shall
have the meaning set forth in the recital at the beginning of
this Agreement.
(ak) "Section 11(a)(ii) Event" shall mean any
event described in Section 11(a)(ii) hereof.
(al) "Section 11(a)(ii) Trigger Date" shall have
the meaning set forth in Section 11(a)(iii) hereof.
(am) "Section 13 Event" shall mean any event
described in clauses (x), (y) or (z) of Section 13(a) hereof.
(an) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(ao) "Stock Acquisition Date" shall mean the
first date of public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed
pursuant to Section 13(d) under the Exchange Act) by the Company
or an Acquiring Person that an Acquiring Person has become such
other than pursuant to a Qualified Offer.
(ap) "Subsidiary" shall mean, with reference to
any Person, any corporation of which an amount of voting
securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned, directly or
indirectly, by such Person, or otherwise controlled by such
Person.
(aq) "Substitution Period" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(ar) "Summary of Rights" shall have the meaning
set forth in Section 3(b) hereof.
(as) "Tender Offer Commencement Date" shall have
the meaning set forth in Section 3(a) hereof.
(at) "Trading Day" shall have the meaning set
forth in Section 11(d)(i) hereof.
(au) "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 or the Preferred Stock, as the case may be)
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.
Section 3. Issuance of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth Business Day 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 later date as the Board shall determine) after the
date (the "Tender Offer Commencement Date") that a tender or
exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) 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 become an Acquiring
Person (the earlier of (i) and (ii) being herein referred to as
the "Distribution Date"), (x) the Purchase Rights and the
Exchange Rights will be evidenced (subject to the provisions of
subsection (b) of this Section 3) by the certificates for the
Capital Stock registered in the names of the holders of the
Capital Stock (which certificates for Capital Stock shall be
deemed also to be certificates for the Purchase Rights and the
Exchange Rights) and not by separate certificates, and (y) the
Purchase Rights and the Exchange Rights will be transferable only
in connection with the transfer of the underlying shares of
Capital Stock (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, (i) to each
record holder of the Capital Stock 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 right certificates, in
substantially the form of Exhibit A hereto (the "Purchase Rights
Certificates"), evidencing one Purchase Right for each share of
Capital Stock so held, subject to adjustment as provided herein,
and (ii) to each record holder of Common Stock 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 right
certificates in substantially the form of Exhibit B hereto (the
"Exchange Rights Certificates", and together with the Purchase
Rights Certificates, the "Rights Certificates"), evidencing one
Exchange Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an adjustment
in the number of Purchase Rights per share of Capital Stock
and/or Exchange Rights per share of Common Stock has been made
pursuant to Section 11(p) 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 Purchase Rights or Exchange Rights. As of and after
the Distribution Date, the Purchase Rights and Exchange Rights
will be evidenced solely by such Rights Certificates.
(b) The Company shall make available a copy of a
summary of the Rights, in substantially the form attached hereto
as Exhibit C (the "Summary of Rights"), to any holder of Purchase
Rights or Exchange Rights who may so request from time to time
prior to the Expiration Date. With respect to certificates for
the Capital Stock outstanding as of the Record Date, until the
Distribution Date, the Purchase Rights will be evidenced by such
certificates for the Capital Stock and the registered holders of
the Capital Stock shall also be the registered holders of the
associated Purchase Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of any
certificates representing shares of Capital Stock in respect of
which Purchase Rights have been issued shall also constitute the
transfer of the Purchase Rights associated with such shares of
Capital Stock. With respect to certificates for Common Stock
outstanding as of the Record Date, until the Distribution Date,
the Exchange Rights will be evidenced by such certificates for
the Common Stock and the registered holders of the Common Stock
shall also be the registered holders of the associated Exchange
Rights. Until the earlier of the Distribution Date or the
Expiration Date, the transfer of any certificates representing
shares of Common Stock in respect of which Exchange Rights have
been issued shall also constitute the transfer of the Exchange
Rights associated with such shares of Common Stock.
(c) Purchase Rights shall be issued in respect of all
shares of Capital Stock, and Exchange Rights shall be issued in
respect of all shares of Common Stock which are issued (whether
originally issued or issued from the Company's treasury) after
the Record Date but prior to the earlier of the Distribution Date
or the Expiration Date. Certificates representing such shares of
Capital Stock shall also be deemed to be certificates for
Purchase Rights and certificates representing such shares of
Common Stock shall also be deemed to be certificates for Exchange
Rights and all such certificates shall bear the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between Meridian Point Realty Trust
VIII Company (the "Company") and the Rights Agent
thereunder (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 issued to, or held 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.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii)
the Expiration Date, the Purchase Rights and Exchange Rights
associated with the Capital Stock and Common Stock, respectively,
represented by such certificates shall be evidenced by such
certificates alone and registered holders of Capital Stock and
Common Stock, respectively, shall also be the registered holders
of the associated Purchase Rights and Exchange Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Purchase Rights and Exchange Rights associated
with the Capital Stock and the Common Stock, respectively,
represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Purchase Rights Certificates and the
Exchange 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 A
hereto and Exhibit B hereto, respectively, 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 Purchase Rights and/or Exchange 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 Purchase
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 shares of Preferred Stock as
shall be set forth therein at the price set forth therein (such
exercise price per share is hereinafter referred to as the
"Purchase Price"), but the amount and type of securities
purchasable upon the exercise of each Purchase Right and the
Purchase Price thereof shall be subject to adjustment as provided
herein. Subject to the provisions of Section 11 and Section 22
hereof, the Exchange Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall
entitle the holders thereof to receive such number of shares of
Preferred Stock as shall be set forth therein upon payment of the
price set forth in Section 7(b)(ii) (such exercise price per
share is herein after referred to as the "Exchange Price") and
surrender of an equal number of shares of Common Stock, but the
amount and type of securities purchasable upon the exercise of
each Exchange Right shall be subject to adjustment as provided
herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a), Section 11(i) or Section 22 hereof that represents
Purchase Rights or Exchange 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 Purchase Rights or
Exchange 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 the Continuing Trustees have 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 the Rights Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its President
or any Vice President, either manually or by facsimile signature,
and shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned by the
Rights Agent, either manually or by facsimile signature, and
shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any 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
Purchase Rights or Exchange 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, (i) any Purchase Rights
Certificate or Purchase Rights Certificates (other than Purchase
Rights Certificates representing Purchase Rights that have been
exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Purchase Rights
Certificate or Purchase Rights Certificates entitling the
registered holder to purchase a like number of shares of
Preferred Stock (or, following a Triggering Event, Preferred
Stock, other securities, cash or other assets, as the case may
be) as the Purchase Rights Certificate or Purchase Rights
Certificates surrendered then entitles such holder (or former
holder in the case of a transfer) to purchase, and (ii) any
Exchange Rights Certificate or Exchange Rights Certificates
(other than Exchange Rights Certificates that have been exchanged
pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Exchange Rights Certificate or
Exchange Rights Certificates entitling the registered holder to
exchange a like number of shares of Common Stock for a like
number of shares of Preferred Stock (or, following a Triggering
Event, Preferred Stock, other securities, cash or other assets,
as the case may be) as the Exchange Rights Certificate or
Exchange Rights Certificates surrendered then entitles such
holder (or former holder in the case of a transfer) to exchange
for each share of Common Stock. Any registered holder desiring
to transfer, split up, combine or exchange any Rights Certificate
or 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 of any such surrendered Rights Certificate 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 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), Section 14 and
Section 24 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 them of the loss,
theft, destruction or mutilation of a Rights Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to 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;
Exchange Price; Expiration Date of Rights. (a) Subject
to Section 7(e) hereof, at any time after the
Distribution Date (in the case of Purchase Rights) and
the earlier to occur of a Section 11(a)(ii) Event or a
Section 13 Event (in the case of Exchange Rights), 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 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 or Exchange Price, as
applicable, and, in the case of an Exchange Right,
together also with the certificate or certificates
representing the shares of Common Stock to be exchanged,
with respect to the total number of shares of Preferred
Stock (or other securities, cash or other assets, as the
case may be) as to which such surrendered Purchase or
Exchange Rights are then exercisable, at or prior to the
earliest of (i) the close of business on November 30,
2007 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23
hereof or (iii) the time at which the Rights are
exchanged pursuant to Section 24 hereof (the earliest of
(i), (ii) and (iii) being referred to herein as the
"Expiration Date").
(b) (i) The Purchase Price for each share
of Preferred Stock pursuant to the exercise of a Purchase
Right shall initially be $32.00, and shall be subject
to adjustment from time to time as provided in Section 11
and Section 13(a) hereof and shall be payable in
accordance with subsection (c) below.
(ii) The Exchange Price for each share of
Preferred Stock pursuant to the exercise of an Exchange
Right shall be the difference between the Market Value
per share of the Preferred Stock and the Market Value per
share of the Common Stock. For purposes hereof, Market
Value per share of the Common Stock or Preferred Stock,
as applicable, shall be deemed to be the average of the
daily closing prices per share of such Common Stock or
Preferred Stock for the ten (10) consecutive Trading Days
ending on the date thirty (30) calendar days prior to the
earlier of the Stock Acquisition Date or the Tender Offer
Commencement Date. The closing price for each day shall
be determined by the method set forth in Section 11(d)(i)
hereof.
(c) Upon receipt of a Rights Certificate
representing exercisable Purchase Rights or Exchange
Rights, with the form of election to purchase and the
certificate duly completed and executed, accompanied by
payment, with respect to each Right so exercised, of the
Purchase Price or Exchange Price per share of Preferred
Stock (or other shares, securities, cash or other assets,
as the case may be) to be purchased or exchanged as set
forth below and an amount equal to any applicable
transfer tax, and, in the case of an Exchange Right, the
surrender of the certificate or certificates representing
the Common Stock to be exchanged the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i)
(A) requisition from any transfer agent of the Preferred
Stock (or make available, if the Rights Agent is the
transfer agent for such Preferred Stock) certificates for
the total number of shares of Preferred Stock to be
purchased or exchanged 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 shares of
Preferred Stock as are to be purchased or exchanged (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 or
Exchange Price (as such amount may be reduced pursuant to
Section 11(a)(iii) hereof) shall be made in cash or by
certified bank check or bank draft payable to the order
of the Company or by such other means of payment as will
be acceptable to the Company. In the event that the
Company is obligated to issue other securities 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.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Purchase Rights or Exchange Rights evidenced thereby, a
new Rights Certificate evidencing Purchase Rights or
Exchange Rights equivalent to the Purchase Rights or
Exchange 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 Purchase
Rights or Exchange Rights beneficially owned by (i) an
Acquiring Person or an 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 Purchase Rights or
Exchange Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person
has any continuing agreement, arrangement or
understanding regarding the transferred Purchase Rights
or Exchange Rights or (B) a transfer which the Continuing
Trustees have 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
Purchase Rights or Exchange Rights shall have any rights
whatsoever with respect to such Purchase Rights or
Exchange Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with,
but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed
and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of
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 Preferred 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, Preferred 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, Preferred 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 best 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 its best
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be
delivered by the Company upon exercise of the Rights has
been determined in accordance with Section 11(a)(iii)
hereof, a registration statement under the Act with
respect to the securities purchasable and exchangeable
upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as
soon as practicable after such filing and (iii) cause
such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities and
(B) the date of the expiration of the Rights. The
Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection with
the exercisability of the Rights. The Company may
temporarily suspend, for a period of time not to exceed
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. Upon 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 following the Distribution Date,
the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction will not
have been obtained, the exercise thereof will not be
permitted under applicable law or a registration
statement will 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 shares of Preferred Stock (and, following
the occurrence of a Triggering Event, Preferred 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
or Exercise Price together with the surrender of shares
of Common Stock, as the case may be), be duly and validly
authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and
agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number
of shares of Preferred Stock (or Preferred Stock and/or
other securities, as the case may be) upon the exercise
of Purchase Rights or Exchange 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 shares of Preferred
Stock (or Preferred 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
Purchase Rights or Exchange Rights surrendered for
exercise or to issue or deliver any certificates for a
number of shares of Preferred Stock (or Preferred 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 Purchase Rights or Exchange 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
shares of Preferred Stock (or Preferred Stock and/or
other securities, as the case may be) is issued upon the
exercise of Preferred Rights or Exchange Rights shall for
all purposes be deemed to have become the holder of
record of such shares of Preferred Stock (or Preferred
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 Preferred Rights or Exchange Rights and,
in the last of Exchange Rights, the certificate or
certificates of Common Stock to be exchanged was duly
surrendered and payment of the Purchase Price or Exchange
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
Preferred 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 Preferred Stock and/or other
securities, as the case may be) transfer books of the
Company are open. Prior to the exercise of the Preferred
Rights or Exchange 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 Purchase Rights or Exchange 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, and
Exchange Price, Number and Kind of Shares or Number of
Rights. The Purchase Price and Exchange Price, the
number and kind of shares covered by each Right and the
number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a)(i) In the event the Company
shall at any time after the date of this
Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine 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,
combination or reclassification, and the number
and kind of shares of Preferred Stock, issuable
on such date, shall be proportionately adjusted
so that the holder of any Purchase 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, which, if such
Purchase Right had been exercised immediately
prior to such date and at a time when the
Preferred Stock transfer books of the Company
were open, such holder would have owned upon
such exercise and been entitled to receive by
virtue of such dividend, subdivision,
combination or reclassification. If an event
occurs which would require an adjustment under
both this Section 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) Subject to Section 24 hereof,
in the event any 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 a transaction set forth in Section
13(a) hereof, or is an acquisition of shares of
Common Stock, Preferred Stock, or Capital Stock
pursuant to a tender offer or an exchange offer
for all outstanding shares of Capital Stock at
a price and on terms determined by at least a
majority of the Continuing Trustees who are not
officers of the Company and who are not
representatives, nominees, Affiliates or
Associates of an Acquiring Person, after
receiving advice from one or more investment
banking firms, to be (a) at a price that is not
inadequate (taking into account all factors
that such Continuing Trustees deem relevant
including, without limitation, prices that
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 (a "Qualified Offer"),
then, promptly following the occurrence of such
an event, proper provision shall be made so
that each holder of a Purchase Right (except as
provided below and in Section 7(e) hereof)
shall thereafter have the right to receive,
upon exercise thereof, 2.9 shares of Preferred
Stock at an exercise price of $1.00 per share
(as may be adjusted from time to time pursuant
hereto).
(iii) In the event that the number
of shares of Preferred Stock that are
authorized by the Company's Articles of
Incorporation but not outstanding or reserved
for issuance for purposes other than upon
exercise of the Rights are not sufficient to
permit the exercise in full of the Rights, the
Company, acting by resolution of the Board,
which resolution shall be effective only with a
concurrence of a majority of the Continuing
Trustees, shall (A) determine the value of the
shares issuable upon the exercise of a Purchase
Right or Exchange Right (the "Current Value"),
and (B) with respect to each Right (subject to
Section 7(e) hereof), make adequate provision
to substitute for the shares of Preferred
Stock, upon the exercise of a Purchase Right or
Exchange Right and payment of the applicable
Purchase Price or Exchange Price, (1) cash, (2)
a reduction in the Purchase Price or Exchange
Price, (3) Common Stock or other equity
securities of the Company, (4) debt securities
of the Company, (5) other assets or (6) any
combination of the foregoing, having an
aggregate value equal to the Current Value
(less the amount of any reduction in the
Purchase Price or Exchange Price), 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 (with the
concurrence of a majority of the Continuing
Trustees); provided, however, that 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)
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 Purchase Right or Exchange Right
and without requiring payment of the Purchase
Price or Exchange Price, shares of Preferred
Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have
an aggregate value equal to the Spread. For
purposes of the preceding sentence, the term
"Spread" shall mean the excess of (i) the
Current Value over (ii) the Purchase Price or
Exchange Price. If the Board (with the
concurrence of a majority of the Continuing
Trustees) determines in good faith that it is
likely that sufficient additional shares of
Preferred Stock 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
thirty (30) day period, as it may be extended,
is hereinafter referred to as the "Substitution
Period"). To the extent that action is to be
taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the
Company (1) shall provide, subject to Section
7(e) hereof, that such action shall apply
uniformly to all outstanding Rights and (2) may
suspend the exercisability of the Rights until
the expiration of the Substitution Period in
order to seek such shareholder approval for
such 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 each share of
Preferred Stock shall be the Current Market
Price per share of the Preferred Stock on the
Section 11(a)(ii) Trigger 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 forty-five (45) days after such record date)
Preferred Stock or securities convertible into Preferred
Stock or at a price per share of Preferred Stock (or
having a conversion price per share, if a security
convertible into 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
that the aggregate offering price of the total number of
shares of Preferred Stock 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 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 binding on the
Rights Agent and the holders of the Purchase Rights.
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 or warrants are
not so issued, the Purchase Price shall be adjusted to be
the Purchase Price that 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 corporation) of evidences of
indebtedness, cash (other than regular periodic cash
distributions 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) 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 Preferred Stock on any date
shall be deemed to be the average of the daily closing
prices per share of such Preferred 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 Preferred Stock on any date shall be deemed to
be the average of the daily closing prices per share of
such Preferred 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 Preferred Stock is determined during a period
following the announcement by the issuer of such
Preferred Stock of (A) a dividend or distribution on such
Preferred Stock payable in shares of such Preferred Stock
or securities convertible into shares of such Preferred
Stock (other than the Rights), or (B) any subdivision,
combination or reclassification of such Preferred Stock,
and the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification shall not have occurred
prior to the commencement of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth
above, then, and 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 American Stock Exchange or, if
the shares of Preferred Stock are not listed or admitted
to trading on the American 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
Preferred Stock are listed or admitted to trading or, if
the shares of Preferred 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 National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on
any such date the shares of Preferred 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
Preferred Stock selected by the Board (with the
concurrence of a majority of the Continuing Trustees).
If on any such date no market maker is making a market in
the Preferred Stock, the fair value of such shares on
such date as determined in good faith by the Board (with
the concurrence of a majority of the Continuing Trustees)
shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on
which the shares of Preferred Stock are listed or
admitted to trading is open for the transaction of
business or, if the shares of Preferred Stock are not
listed or admitted to trading on any national securities
exchange, a Business Day. If the Preferred Stock is not
publicly held or not so listed or traded, Current Market
Price per share 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.
(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 tenth 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 that mandates such
adjustment and (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 Purchase Right or Exchange 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 Purchase Right or Exchange Right and
the Purchase Price or Exchange Price thereof 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 (but with respect
to shares receivable upon exercise of any Exchange Right,
only to the extent that any of the foregoing Sections
expressly apply to the Exchange Rights).
(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 shares 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
Purchase Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that
number of shares of Preferred Stock (calculated to the
nearest tenth obtained by (i) multiplying (x) the number
of shares covered by a Purchase 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 Purchase Rights, in lieu of any adjustment
in the number of shares of Preferred Stock purchasable
upon the exercise of a Purchase Right. Each of the
Purchase Rights outstanding after the adjustment in the
number of Purchase Rights shall be exercisable for the
number of shares of Preferred Stock for which a Purchase
Right was exercisable immediately prior to such
adjustment. Each Purchase Right held of record prior to
such adjustment of the number of Purchase Rights shall
become that number of Purchase Rights (calculated to the
nearest one-tenth) 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 Purchase 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 Purchase
Rights Certificates have been issued, shall be at least
ten (10) days later than the date of the public
announcement. If Purchase Rights Certificates have been
issued, upon each adjustment of the number of Purchase
Rights pursuant to this Section 11(i), the Company shall,
as promptly as practicable, cause to be distributed to
holders of record of Purchase Rights Certificates on such
record date Purchase Rights Certificates evidencing,
subject to Section 14 hereof, the additional Purchase
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 Purchase
Rights Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof, if
required by the Company, new Purchase Rights Certificates
evidencing all the Purchase Rights to which such holders
shall be entitled after such adjustment. Purchase 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 Purchase 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 shares of
Preferred Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued
may continue to express (in the case of Purchase Rights
Certificates) the Purchase Price per share and (in the
case of all Rights Certificates) the number of shares
that 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 shares of
Preferred Stock issuable upon exercise of the Purchase
Rights, the Company shall take any corporate action that
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 shares 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 Purchase
Right exercised after such record date the number of
shares of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the number of shares 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 reductions in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith
judgment the Board (with the concurrence of a majority of
the Continuing Trustees) 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 that 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 fifty percent (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 or sale there are any rights,
warrants or other instruments or securities outstanding
or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to
be afforded by the Rights or (y) prior to, simultaneously
with or immediately after such consolidation, merger or
sale, the shareholders 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 or Section 26 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.
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 promptly (a) prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) file with the Rights
Agent, and with each transfer agent for the Common Stock
and the Preferred Stock, a copy of such certificate and
(c) if a Distribution Date has occurred, mail a brief
summary thereof to each registered holder of a Rights
Certificate in accordance with Section 26 hereof. 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 that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (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 or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all
or part of the outstanding shares of Capital Stock shall
be changed into or exchanged for stock or other
securities of any other Person 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 fifty percent (50%) of the assets or earning
power of the Company and its Subsidiaries (taken as a
whole) 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), 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 Purchase
Right, except as provided in Section 7(e) hereof, shall
thereafter 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, non-assessable and
freely tradeable shares of Common Stock of the Principal
Party (as defined below), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal in value, based on the Current
Market Price per share of such Common Stock, to the value
of 2.9 shares of Preferred Stock (or, if such number of
shares has been adjusted pursuant to Section 11 hereof,
such adjusted number of shares of Preferred Stock) based
on the Current Market Price of such shares of Preferred
Stock, and each holder of an Exchange Right, except as
provided in Section 7(e) hereof, shall thereafter have
the right to exchange each share of Common Stock held by
such holder, at the then current Exchange Price in
accordance with the terms of this Agreement, such number
of validly authorized and issued, fully paid, non-
assessable 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 in value, based on the Current
Market Price per share of such Common Stock, to one share
of Preferred Stock based on the Current Market Price for
such Preferred Stock, (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), the Person
that is the issuer of any securities into which
shares of Capital Stock of the Company are
converted in such merger or consolidation, and
if no securities are so issued, the Person that
is the other party to such merger or
consolidation; 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;
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 twelve (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; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
such consolidation, merger, sale or transfer 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 providing for the terms set forth
in subsections (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of
any consolidation, merger or sale of assets mentioned in
subsection (a) of this Section 13, 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;
(ii) take all such other action
as may be necessary to enable the Principal
Party to issue the securities purchasable upon
exercise of the Rights, including but not
limited to the registration or qualification of
such securities under all requisite securities
laws of jurisdictions of the various states and
the listing of such securities on such
exchanges and trading markets as may be
necessary or appropriate; and
(iii) 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 under
the Exchange Act.
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 subsections (x)
and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares
of Capital Stock pursuant to a Qualified Offer (or a
wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of
Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such tender
offer or exchange offer, and the price per share of
Preferred Stock offered in such transaction is not less
than the price per share of Preferred Stock paid to all
holders of shares of Preferred Stock 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 and
Preferred Stock pursuant to such transaction is the same
as the form of consideration paid pursuant to such
Qualified 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(p) 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 American Stock Exchange or, if the Rights are not
listed or admitted to trading on the American Stock
Exchange as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making
a market in the Rights selected by the Board (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 that are integral multiples of one-tenth 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 that are
integral multiples of one-tenth of a share of Preferred
Stock). In lieu of fractional shares of Preferred Stock
that are not integral multiples of one-tenth 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-
tenth of a share of Preferred Stock. For purposes of
this Section 14(b), the current market value of one-tenth
of a share of Preferred Stock shall be one-tenth of the
closing price of a share of Preferred Stock (as
determined pursuant to Section 11(d)(ii) hereof) for the
Trading Day immediately prior to the date of such
exercise.
(c) 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 are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Capital Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Capital Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Capital Stock), 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 Capital Stock;
(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
Preferred Stock or 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 Preferred Stock or 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
shares of Preferred Stock or any other securities of the
Company that 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
directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or
other actions affecting shareholders (except as provided
in Section 25 hereof), or to receive 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 Preferred 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 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 shareholder services 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. In case 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 in
case 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) In case 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 Market Value
and 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, any
Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement
in reliance upon such certificate.
(c) The Rights Agent shall be liable
hereunder 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 or 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 thereof); 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, Section 13 or Section 24 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
Secretary, any Assistant Secretary, 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 shareholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct; provided,
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
thirty (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, if
such resignation occurs after the Distribution Date, to
the registered holders of the Rights Certificates by
first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon thirty (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, if such removal
occurs after the Distribution Date, to the registered
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
thirty (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. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a)
a corporation or other entity organized and doing
business under the laws of the United States or of any of
the states of the United States, in good standing, that
is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by
federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an affiliate of a
corporation or other entity described in clause (a) of
this sentence. After appointment, the successor Rights
Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and the Preferred
Stock and, if such appointment occurs after the
Distribution Date, 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 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 Purchase
Rights Certificates or Exchange Rights Certificates made
in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of
shares of Capital Stock following the Distribution Date
and prior to the redemption or expiration of the Rights,
the Company (a) shall, with respect to shares of Capital
Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement,
granted or awarded as of the Distribution Date, or upon
the exercise, conversion or exchange of securities
hereafter 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, at its option (but
following the Stock Acquisition Date, only with the
concurrence of a majority of the Continuing Trustees), 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, redeem all but
not less than all the then outstanding Rights at a
redemption price of $.001 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 Preferred Stock
(based on the Current Market Price of the Preferred 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 be filed by the
Company 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 and the Preferred 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.
(c) Notwithstanding the provisions of
Section 23(a) hereof, in the event that a majority of the
Board is elected by shareholder action by written
consent, or is comprised of persons elected at a meeting
of shareholders who were not nominated by the Board in
office immediately prior to such meeting, then for a
period of one hundred eighty (180) days following the
effectiveness of such election the Rights shall not be
redeemed if such redemption is reasonably likely to have
the purpose or effect of allowing any Person to become an
Acquiring Person or otherwise facilitating the occurrence
of a Triggering Event or a transaction with an Acquiring
Person.
Section 24. [INTENTIONALLY OMITTED]
Section 25. 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 fifty percent (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 26 hereof, a notice of such proposed action,
which shall specify the record date for the purposes of
such stock dividend, 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 26
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 subsection to
Preferred Stock shall be deemed thereafter to refer to
Preferred Stock and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any 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:
Meridian Point Realty Trust VIII Company
655 Montgomery Street, Suite 800
San Francisco, CA 94111
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any
notice or demand authorized by this Agreement to be given
or made by the Capital 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:
First Chicago Trust Company of New York
Tenders and Exchange Administration
525 Washington Boulevard, Mail Suite 4600
Jersey City, NJ 07303
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 Capital Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. Prior
to the Distribution Date, the Company and the Rights
Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the
approval of any holders of certificates representing
shares of Capital Stock. From and after the Distribution
Date and subject to the penultimate sentence of this
Section 27, the Company and the Rights Agent shall, if
the Company 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 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 an Acquiring Person); provided,
however, 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 at such time as the Rights are not then
redeemable or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the
holders of Rights. 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 27, the Rights
Agent shall execute such supplement or amendment. Prior
to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of
the holders of Capital Stock.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 29. Determinations and Actions by the
Board, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock or
Preferred Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock or
Preferred Stock 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 required, the concurrence of a majority 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
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 (i) interpret the
provisions of this Agreement, and (ii) 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 this Agreement and any determination as to whether
actions of any Person shall be such as to cause such
Person to beneficially own shares held by another
Person). 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 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 or any of its members to
any liability to the holders of the Rights.
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
Capital Stock) 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 Capital Stock).
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
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 provisions
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 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 Articles of
Incorporation and Bylaws (as the same may be amended and
restated from time to time).
Section 32. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts made and to be
performed entirely within such State.
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 executed by their duly
authorized representatives as of the day and year first
above written.
MERIDIAN POINT REALTY TRUST
VIII COMPANY
By ____________________________________
Name:
Title:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By ____________________________________
Name:
Title:
Exhibit A
[Form of Purchase Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER NOVEMBER __, 2007 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED
BY AN ACQUIRING PERSON (AS SUCH TERM IS 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 (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
THE RIGHTS AGREEMENT.]*
Rights Certificate
Meridian Point Realty Trust VIII Company
This certifies that , or
registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of November
30, 1997 (the "Rights Agreement"), between Meridian
Point Realty Trust VIII Company, a Missouri corporation
(the "Company"), and First Chicago Trust Company of New
York, a New York corporation (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M.
(New York City time) on November 30, 2007 at the office
or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, two and
nine-tenths of fully paid, non-assessable shares of
Preferred Stock of the Company (the "Preferred Stock"),
at a purchase price of $32.00 per share (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 which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth
above, are the number and Purchase Price as of November
30, 1997 based on the Preferred Stock and Common Stock
as constituted at such date.
------------------------
* The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
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
Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a
Person (as such term is defined in the Rights Agreement)
who, after such transfer, became an Acquiring Person, or
an Affiliate or Associate of an Acquiring Person, 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 other securities that may be
purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and
adjustment upon the happening of certain events,
including Triggering Events.
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 above-mentioned office 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 its option at a redemption
price of $.001 per Right at any time prior to the
earlier of the close of business on (i) the tenth
Business Day (as such term is defined in the Rights
Agreement) following the Stock Acquisition Date (as such
time period may be extended pursuant to the Rights
Agreement) and (ii) the Final Expiration Date.
Notwithstanding the foregoing, the Rights generally may
not be redeemed for one hundred eighty (180) days
following a change in a majority of the Board of
Directors of the Company as a result of a proxy contest.
In addition, the Rights may be exchanged, in whole or in
part, for shares of the Preferred Stock of the Company
having essentially the same value or economic rights as
such shares. Immediately upon the action of the Board
of Directors of the Company authorizing any such
exchange, and without any further action or any notice,
the Rights (other than Rights which are not subject to
such exchange) will terminate and the Rights will only
enable holders to receive the shares issuable upon such
exchange.
No fractional shares of Preferred Stock will
be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are
integral multiples of one-tenth of a share of Preferred
Stock, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a
cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred 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 corporate action,
or, to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights
evidenced by this 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 corporate seal.
Dated as of ,
ATTEST: MERIDIAN POINT REALTY TRUST
VIII COMPANY
____________________ By_________________________
Secretary Title:
Countersigned:
[____________]
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 right, 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 Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(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 an Acquiring Person.
Dated: __________, __________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing 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 if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: MERIDIAN POINT REALTY TRUST VIII COMPANY
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate purchase the shares of Preferred Stock issuable
upon the exercise of the Rights (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 pursuant to the Rights Agreement);
(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 an Acquiring Person.
Dated: ___________, ____ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing 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.
Exhibit B
[Form of Exchange Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER NOVEMBER 30, 2007 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS 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 (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 THE RIGHTS AGREEMENT.]*
Rights Certificate
Meridian Point Realty Trust VIII Company
This certifies that , or
registered assigns, is the registered owner of the number
of Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of November
14, 1997 (the "Rights Agreement"), between Meridian Point
Realty Trust VIII Company, a Missouri corporation (the
"Company"), and First Chicago Trust Company of New York,
a New York corporation (the "Rights Agent"), to receive
from the Company at any time prior to 5:00 P.M. (New York
City time) on November 30, 2007 at the office or offices
of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one fully paid, non-
assessable share of Preferred Stock (the "Preferred
Stock"), at an exchange price as set forth in the Rights
Agreement (the "Exchange Price"), upon presentation and
surrender of this Rights Certificate with the Form of
Election to Purchase and related Certificate duly
executed and of a certificate or certificates for shares
of Common Stock equal to the number of Rights exercised.
------------------
* The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
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
Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a Person (as
such term is defined in the Rights Agreement) who, after
such transfer, became an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, 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 number
and kind of shares of Preferred Stock or other securities
that may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain
events.
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 above-mentioned office 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 its option at a redemption
price of $.001 per Right at any time prior to the earlier
of the close of business on (i) the tenth Business Day
(as such term is defined in the Rights Agreement)
following the Stock Acquisition Date (as such time period
may be extended pursuant to the Rights Agreement) and
(ii) the Final Expiration Date. Notwithstanding the
foregoing, the Rights generally may not be redeemed for
one hundred eighty (180) days following a change in a
majority of the Board of Directors of the Company as a
result of a proxy contest. In addition, the Rights may
be exchanged, in whole or in part, for shares of the
Common Stock of the Company having essentially the same
value or economic rights as such shares. Immediately
upon the action of the Board of Directors of the Company
authorizing any such exchange, and without any further
action or any notice, the Rights (other than Rights which
are not subject to such exchange) will terminate and the
Rights will only enable holders to receive the shares
issuable upon such exchange.
No fractional shares of Preferred Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby, but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred 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 corporate action, or, to
receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced
by this 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 corporate seal.
Dated as of ,
ATTEST: MERIDIAN POINT REALTY TRUST
VIII COMPANY
____________________ By_________________________
Secretary Title:
Countersigned:
[____________]
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 right, 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 Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(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 an Acquiring Person.
Dated: __________, __________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing 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 EXCHANGE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: MERIDIAN POINT REALTY TRUST VIII COMPANY
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate to receive the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other
securities of the Company or of any other Person which may
be issuable upon the exercise of the Rights) in exchange
for the shares of Common Stock equal in number to the
number of Rights being exercised pursuant hereto 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 pursuant to the Rights Agreement);
(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 an Acquiring Person.
Dated: ___________, ____ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing 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.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK AND
TO EXCHANGE COMMON STOCK FOR PREFERRED STOCK
On November 14, 1997, the Board of Trustees of
Meridian Point Realty Trust VIII Company (the "Company")
declared a dividend distribution of one purchase right (a
"Purchase Right") for each outstanding share of preferred
stock at the Company (the "Preferred Stock") and each
outstanding share of Common Stock of the Company (the
"Common Stock") to shareholders of record at the close of
business on November 30, 1997 (the "Record Date"). Each
Purchase Right entitles the registered holder to purchase
from the Company two and nine-tenths shares of Preferred
Stock, at a Purchase Price of $32.00, subject to
adjustment. On the same date, the Board of Trustees also
declared a dividend distribution of one exchange right
for each outstanding share of Common Stock (an "Exchange
Right" and together with the "Purchase Rights", the
"Rights"). Each Exchange Right entitles the registered
holder to exchange one share of Common Stock for one
share of Preferred Stock at a price equal to the
difference between the market value of the Preferred
Stock and the market value of the Common Stock. The
description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the
Company and Chase Mellon Shareholder Services, L.L.C., as
Rights Agent.
Initially, the Rights will be attached to all
Preferred Stock and Common Stock certificates
representing shares then outstanding, and no separate
rights certificates will be distributed. Subject to
certain exceptions specified in the Rights Agreement, the
Rights will separate from the Preferred Stock and the
Common Stock (collectively, the "Capital Stock") and a
Distribution Date will occur upon the earlier of (i) ten
business days following a public announcement that a
person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of:
(a) 50% or more of the outstanding Common Stock (the
"Common Stock Threshold"), (b) 15% or more of the
outstanding Preferred Stock (the "Preferred Stock
Threshold"), or (c) shares of Common Stock, Preferred
Stock or a combination thereof in an amount equal to
percentages of the Common Stock Threshold and the
Preferred Stock Threshold which equal at least 100% (the
"Capital Stock Threshold") (e.g. beneficial ownership of
67% of 50% of the outstanding shares of Common Stock and
33% of 15% of the outstanding shares of Preferred Stock)
(the "Stock Acquisition Date"). or (ii) ten business days
(or such later date as the Board of Directors of the
Company will determine) following the commencement of a
tender offer or exchange offer that would result in a
person or group becoming an Acquiring Person. An
exception from the definition of Acquiring Person is
provided for a person or group that beneficially owns
Common Stock, Preferred Stock or a combination thereof in
an amount equal to or exceeding the Common Stock
Threshold, the Preferred Stock Threshold or the Capital
Stock Threshold on the Record Date, unless and until such
person or group becomes the beneficial owner of
additional shares of Common Stock, Preferred Stock or a
combination thereof in an amount equal to 1% or more of
the then outstanding Capital Stock of the Company.
Until the Distribution Date, (i) the Rights
will be evidenced by the Preferred Stock and Common Stock
certificates and will be transferred with and only with
such Preferred Stock and Common Stock certificates, (ii)
new Preferred Stock and Common Stock certificates issued
after the Record Date will contain a notation
incorporating the Rights Agreement by reference and (iii)
the surrender for transfer of any certificates for
Preferred Stock or Common Stock outstanding will also
constitute the transfer of the Rights associated with the
Preferred Stock or Common Stock represented by such
certificate.
The Purchase Rights are not exercisable until
the Distribution Date and the Exchange Rights are not
exercisable until the Stock Acquisition Date. All Rights
will expire at the close of business on November 30,
2007, 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 Capital Stock as of the close of business
on the Distribution Date and, thereafter, the separate
rights certificates alone will represent the Rights.
Except as otherwise determined by the Board of Trustees,
only shares of Capital Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a person becomes an Acquiring
Person (except pursuant to an offer for all outstanding
shares of Capital Stock that the disinterested directors
determine not to be inadequate and to otherwise be in the
best interests of the Company and its shareholders), each
holder of a Purchase Right will thereafter have the right
to receive, upon exercise, two and nine-tenths shares of
Preferred Stock (or, in certain circumstances, cash,
property or other securities of the Company) at a
Purchase Price of $1.00 per share. Notwithstanding any
of the foregoing, following the occurrence of the event
set forth in this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not
exercisable following the occurrence of the event set
forth above until such time as the Rights are no longer
redeemable by the Company as set forth below.
In the event that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction in which
the Company is not the surviving corporation (other than
a merger which follows an offer described in the second
preceding paragraph) or (ii) 50% or more of the Company's
assets, cash flow or earning power is sold or
transferred, then (a) each holder of a Purchase Right and
each holder of an Exchange Right (except Purchase or
Exchange Rights which previously have been voided as set
forth above) shall thereafter have the right to receive,
respectively, upon exercise, common stock of the
acquiring company having a value equal to 2.9 shares of
Preferred Stock, and one share of Preferred Stock. The
events set forth in this paragraph and in the second
preceding paragraph are referred to as the "Triggering
Events."
At any time after a person becomes an Acquiring
Person and prior to the acquisition by such person or
group of 50% or more of the outstanding Capital Stock,
the Board may exchange the Rights (other than Rights
owned by such person or group that have become void), in
whole or in part, at an exchange ratio of one share of
Common Stock (for the exchange of Exchange Rights), or
one share of Preferred Stock (for the exchange of
Purchase Rights), or, in each case, of a share of a class
or series of the Company's stock having equivalent
rights, preferences and privileges, per Right (subject to
adjustment).
At any time until ten business days following
the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.001 per
Right (payable in cash, Capital Stock or other
consideration deemed appropriate by the Board).
Immediately upon the action of the Board ordering
redemption of the Rights, the Rights will terminate and
the only right of the holders of Rights will be to
receive the $.001 redemption price. Notwithstanding the
foregoing, the Rights generally may not be redeemed for
180 days following a change in a majority of the Board as
a result of a proxy contest.
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 should 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 Preferred Stock (or
other consideration) of the Company or for common stock
of the acquiring company as set forth above.
Any of the provisions of the Rights Agreement
may be amended by the Board prior to the Distribution
Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended by the Board in order to
cure any ambiguity, to make changes which do not
adversely affect the interests of holders of Rights, or
to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment may be
made at such time as the Rights are not redeemable.
A copy of the Rights Agreement is being filed
with the Securities and Exchange Commission as an Exhibit
to a Current Report on Form 8-K. A copy of the Rights
Agreement is available free of charge from the Company.
This summary description of the Rights does not purport
to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated
herein by reference.
