SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
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MERIDIAN POINT REALTY TRUST VIII CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3058019
(STATE OF INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
655 MONTGOMERY STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
94111
(ZIP CODE)
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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
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 2 of the Form 8-A filed by Meridian Point Realty Trust
VIII Co. on November 21, 1997 is hereby amended and restated in its
entirety as follows:
ITEM 2. EXHIBITS.
1. Amended and Restated Rights Agreement, dated as of
December 15, 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
Name: Robert H. Gidel
Title: Chief Executive Officer
Date: December 15, 1997
EXHIBIT INDEX
Exhibit Description Page
1 Amended and Restated Rights Agreement, dated as of 5
December 15, 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.
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Meridian Point Realty Trust VIII Company
and
First Chicago Trust Company of New York
as Rights Agent
Amended and Restated Rights Agreement
Dated as of December 15, 1997
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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 Ex-
change of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certifi-
cates................................................. 13
7. Exercise of Rights; Purchase Price; Ex-
change 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
AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of
December 15, 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");
and
WHEREAS, the Company and the Rights Agent entered into that
certain Rights Agreement, dated as of November 14, 1997; and
WHEREAS, the Company and the Rights Agent have agreed to
amend and restate the Rights Agreement, in order to amend the provisions
of the Rights Agreement regarding fractional shares and to make certain
other modifications to the Rights Agreement;
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, consti-
tuting 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
share holders 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
----------- -----------
.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) 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 addi-
tional 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 Certifi-
cates, 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) 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. 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 hereinafter 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 or its Chief Executive
Officer, 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 Ex-
change 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 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 reason ably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate
or Rights Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to 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") or (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the earlier of (i) and (ii) 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) 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 be comes 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 becom ing 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 re served for such issuance to be
listed on such exchange upon official notice of issuance upon such
exercise.
(c) The Company shall use its best ef forts 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
Com pany 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 Purchase 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 Purchase Rights or Exchange
Rights and, in the case 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
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 Purchase 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 re spect 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 Pre-
ferred 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 re quire an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event 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 concur-
rence 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
ade quate 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 announce ment 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) 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 there after 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 exer cised 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 one-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 adjust
ment 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 regis-
tered 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 Subsid iary, 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 re spect to the Rights and the securities
purchas able 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 Common 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 contem plated 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, or to distribute Rights Ce tificates 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 upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock. In lieu
of fractional shares 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 share of Preferred Stock. For purposes
of this Section 14(b), the current market value of one share of Preferred
Stock shall be the closing price of a share of Preferred Stock (as
determined pursuant to Section 11(d)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 other wise 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 other
wise 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 con
strued 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 sub
scription 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,
direc tion, 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 im posed 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 or Section 13 hereof or responsible for the manner, method or amount
of any such adjustment or the ascertain ing 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 assign ment 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 ap-
pointed 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 Certifi cates.
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 here after
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 reclassifica tion 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 Company or by the
holder of any Rights Certificate to or on the Rights Agent shall be suffi-
ciently given or made if sent by first-class mail, post age 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, post age 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
Com pany 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
coin cident 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 judg ment 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 in valid, 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 /s/ Robert Gidel
_______________________________
Name: Robert Gidel
Title: Chief Executive Officer
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By /s/ James Kuzmich
_________________________________
Name: James Kuzmich
Title: Assistant Vice President
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.](1)
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"), as
- --------------
1 The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
amended, 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 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.
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 Trigger ing 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.
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 any thing 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 af
fecting shareholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evi denced 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, with out 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 writ ten 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.](2)
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"), as amended, 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"),
- ----------------
2 The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
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.
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.
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, with out 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 Pur chase 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 adjust
ment. 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 differ ence 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 First Chicago Trust Company of New York, as
Rights Agent.
Initially, the Rights will be attached to all Preferred Stock
and Common Stock certificates represent ing 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 Distribu tion 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 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 consider ation 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.
