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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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MERIDIAN INDUSTRIAL TRUST, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 94-3224765
(State of Incorporation or organization) (I.R.S. Employer Identification Number)
455 MARKET STREET, 17TH FLOOR 94105
SAN FRANCISCO, CALIFORNIA (Zip code)
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class
to be so registered
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RIGHTS TO PURCHASE SERIES C JUNIOR PARTICIPATING PREFERRED STOCK, PAR VALUE
$.001 PER SHARE
Securities to be registered pursuant to Section 12(g) of the Act: NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On February 27, 1998, the Board of Directors of Meridian Industrial Trust,
Inc., a Maryland corporation (the "Company"), declared a dividend of one
preferred share purchase right (a "Right") for each outstanding share of common
stock, par value $.001 per share (the "Common Shares"), of the Company. The
dividend is payable to the stockholders of record on March 16, 1998 (the "Record
Date"). As of March 6, 1998, 30,186,468 Common Shares were issued and
outstanding. Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series C Junior Participating Preferred
Stock, par value $.001 per share (the "Preferred Shares"), of the Company, at a
price of $100 per one one-thousandth of a Preferred Share (the "Purchase
Price"), subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") dated as of March 12, 1998,
between the Company and First Chicago Trust Company of New York, as Rights Agent
(the "Rights Agent").
DETACHMENT OF RIGHTS; EXERCISE. Initially, the Rights will attach to all
Common Shares, whether held in certificated or book entry form, and no separate
Right Certificate will be distributed. The Rights will separate from the Common
Shares and a Distribution Date will occur upon the earlier of (i) 10 business
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired beneficial ownership of
15% or more of the outstanding Voting Shares (as defined in the Rights
Agreement) of the Company, subject to certain exceptions with respect to
stockholders that beneficially owned more than 15% of the Company's outstanding
Voting Shares on the date the Rights Agreement was adopted (the "Ownership
Limit"), or (ii) 10 business days following the commencement or announcement of
an intention to commence a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or group in excess of
the Ownership Limit.
Until the Distribution Date (or earlier redemption or expiration of the
Rights) (i) with respect to Common Shares outstanding on the Record Date that
are held in certificated form, the Rights will be evidenced by the certificates
representing such Common Shares with a copy of the Summary of Rights to Purchase
Preferred Shares included as Exhibit 4.4 hereto (the "Summary of Rights")
attached thereto, (ii) with respect to Common Shares outstanding on the Record
Date that are held in book entry form, the Rights will be evidenced a notation
in the records of the Rights Agent (which also serves as the transfer agent for
the Common Shares), (iii) the Rights will be transferred with and only with the
Common Shares, (iv) new Common Share certificates issued after the Record Date,
upon transfer or new issuance of the Common Shares in certificated form, will
contain a notation incorporating the Rights Agreement by reference, and (v) the
surrender for transfer of any certificates for Common Shares outstanding as of
the Record Date, even without such notation or a copy of the Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Shares represented by such certificate.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (the "Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights. After the Distribution Date the Rights will not be held in
book-entry form.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on March 12, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or the Rights are earlier redeemed or exchanged by
the Company as described below.
If a person or group were to acquire Voting Shares of the Company in excess
of the Ownership Limit, each Right then outstanding (other than Rights
beneficially owned by the Acquiring Person which would become null and void)
would become a right to buy that number of Common Shares (or under certain
circumstances, the equivalent number of one one-thousandths of a Preferred
Share) that at the time of such acquisition would have a market value of two
times the Purchase Price of the Right.
If the Company were acquired in a merger or other business combination
transaction or more than 50% of its consolidated assets or earning power were
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number
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of shares of common stock of the acquiring company which at the time of such
transaction would have a market value of two times the Purchase Price of the
Right.
PREFERRED SHARES. The dividend and liquidation rights, and the
non-redemption feature, of the Preferred Shares are designed so that the value
of one one-thousandth of a Preferred Share purchasable upon exercise of each
Right will approximate the value of one Common Share. The Preferred Shares
issuable upon exercise of the Rights will be non-redeemable and rank junior to
all other series of the Company's preferred stock. Each whole Preferred Share
will be entitled to receive a quarterly preferential dividend in an amount per
share equal to the greater of (i) $1.00 in cash, or (ii) in the aggregate, 1,000
times the dividend declared on the Common Shares. In the event of liquidation,
the holders of the Preferred Shares will be entitled to receive a preferential
liquidation payment equal to the greater of (i) $1,000 per share, or (ii) in the
aggregate, 1,000 times the payment made on the Common Shares. In the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged for or changed into other stock or securities, cash or other property,
each whole Preferred Share will be entitled to receive 1,000 times the amount
received per Common Share. Each whole Preferred Share shall be entitled to
1,000 votes on all matters submitted to a vote of the stockholders of the
Company, and Preferred Shares shall generally vote together as one class with
the Common Stock and any other capital stock on all matters submitted to a vote
of stockholders of the Company.
The offer and sale of the Preferred Shares issuable upon exercise of the
Rights will be registered with the Securities and Exchange Commission and such
registration will not be effective until the Rights become exercisable.
ANTIDILUTION AND OTHER ADJUSTMENTS. The number of one one-thousandths of a
Preferred Share or other securities or property issuable upon exercise of the
Rights, and the Purchase Price payable, are subject to customary adjustments
from time to time to prevent dilution.
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
EXCHANGE OPTION. At any time after the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of the outstanding
Voting Shares of the Company in excess of the Ownership Limit and before the
acquisition by a person or group of 50% or more of the outstanding Voting Shares
of the Company, the Board of Directors may, at its option, issue Common Shares
in mandatory redemption of, and in exchange for, all or part of the then
outstanding and exercisable Rights (other than Rights owned by such person or
group which would become null and void) at an exchange ratio of one Common Share
(or one one-thousandth of a Preferred Share) for each two Common Shares for
which each Right is then exercisable, subject to adjustment.
REDEMPTION OF RIGHTS. At any time prior to the first public announcement
that a person or group has become the beneficial owner of Voting Shares in
excess of the Ownership Limit, the Board of Directors of the Company (including
at least a majority of the Continuing Directors) may redeem all but not less
than all the then outstanding Rights at a price of $.001 per Right (the
"Redemption Price"). The redemption of the Rights may be made effective at such
time, on such basis and with such conditions as the Board of Directors
(including at least a majority of the Continuing Directors) in its sole
discretion may establish. Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
NO RIGHTS AS STOCKHOLDER. Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
AMENDMENT OF RIGHTS. The terms of the Rights may be amended by the Board
of Directors of the Company (including at least a majority of the Continuing
Directors) without the consent of the holders of the Rights, including an
amendment to extend the Final Expiration Date, and, provided a Distribution Date
has not occurred, to extend the period during which the Rights may be redeemed,
except that after the first public announcement that a person or group
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has become the beneficial owner of outstanding Voting Shares in excess of the
Ownership Limit, no such amendment may materially and adversely affect the
interests of the holders of the Rights.
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement, form of
Certificate of Designation of Series C Junior Participating Preferred Stock,
form of Right Certificate, form of the Summary of Rights and the specimen of the
legend to be placed on new Common Share certificates, filed as exhibits hereto
and incorporated by reference herein.
ITEM 2. EXHIBITS.
3.1 The Company's Third Amended and Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-11, Registration No. 333-02322).
3.2 Second Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1997).
3.3 Amendment to Second Amended and Restated Bylaws adopted January 26,
1996 (incorporated by reference to Exhibit 3.2 to the Company's Quarterly Report
on Form 10-Q for the period ended September 30, 1997).
3.4 Second Amendment to Second Amended and Restated Bylaws adopted
September 17, 1997 (incorporated by reference to Exhibit 3.3 to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1997).
4.1. Rights Agreement, dated as of March 12, 1998, between the Company
and the Rights Agent, specifying the terms of the Rights, which includes the
form of Certificate of Designation of Series C Junior Participating Preferred
Stock as Exhibit A, the form of Right Certificate as Exhibit B and the form of
the Summary of Rights as Exhibit C.
4.2. Form of Certificate of Designation of Series C Junior Participating
Preferred Stock (included as Exhibit A to the Rights Agreement filed as
Exhibit 4.1 hereto) setting forth the terms of the Series C Junior Participating
Preferred Stock, par value $.001 per share.
4.3. Form of Right Certificate (included as Exhibit B to the Rights
Agreement filed as Exhibit 4.1 hereto). Pursuant to the Rights Agreement,
printed Right Certificates will not be delivered until as soon as practicable
after the Distribution Date.
4.4. Form of Summary of Rights to Purchase Preferred Shares (included as
Exhibit C to Rights Agreement filed as Exhibit 4.1 hereto) which, together with
certificates representing the outstanding Common Shares of the Company, shall
represent the Rights prior to the Distribution Date.
4.5. Specimen of legend to be placed, pursuant to Section 3(d) of the
Rights Agreement, on all new Common Share certificates issued by the Company
after March 16, 1998 and prior to the Distribution Date upon transfer, exchange
or new issuance.
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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 INDUSTRIAL TRUST, INC.
Date: March 16, 1998 By:/s/ Robert A. Dobbin
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Name: Robert A. Dobbin
Title: Secretary and General Counsel
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
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3.1 The Company's Third Amended and Restated Articles
of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement
on Form S-11, Registration No. 333-02322).
3.2 Second Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1997).
3.3 Amendment to Second Amended and Restated Bylaws
adopted January 26, 1996 (incorporated by
reference to Exhibit 3.2 to the Company's
Quarterly Report on Form 10-Q for the period
ended September 30, 1997).
3.4 Second Amendment to Second Amended and Restated
Bylaws adopted September 17, 1997 (incorporated
by reference to Exhibit 3.3 to the Company's
Quarterly Report on Form 10-Q for the period
ended September 30, 1997).
4.1 Rights Agreement, dated as of March 12, 1998,
between the Company and the Rights Agent,
specifying the terms of the Rights, which
includes the form of Certificate of Designation
of Series C Junior Participating Preferred Stock
as Exhibit A, the form of Right Certificate as
Exhibit B and the form of the Summary of Rights
as Exhibit C
4.2 Form of Certificate of Designation of Series C
Junior Participating Preferred Stock (included as
Exhibit A to the Rights Agreement filed as
Exhibit 4.1 hereto) setting forth the terms of
the Series C Junior Participating Preferred
Stock, par value $.001 per share
4.3 Form of Right Certificate (included as Exhibit B
to the Rights Agreement filed as Exhibit 4.1
hereto). Pursuant to the Rights Agreement,
printed Right Certificates will not be delivered
until as soon as practicable after the
Distribution Date
4.4 Form of Summary of Rights to Purchase Preferred
Shares (included as Exhibit C to Rights Agreement
filed as Exhibit 4.1 hereto) which, together with
certificates representing the outstanding Common
Shares of the Company, shall represent the Rights
prior to the Distribution Date
4.5 Specimen of legend to be placed, pursuant to
Section 3(d) of the Rights Agreement, on all new
Common Share certificates issued by the Company
after March 16, 1998 and prior to the
Distribution Date upon transfer, exchange or new
issuance
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RIGHTS AGREEMENT
between
MERIDIAN INDUSTRIAL TRUST, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
as Rights Agent
Dated as of March 12, 1998
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TABLE OF CONTENTS
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Section 1. Certain Definitions . . . . . . . . . . . . . . . . . . . . -1-
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . . . .-10-
Section 3. Issue of Right Certificates . . . . . . . . . . . . . . . .-11-
Section 4. Form of Right Certificates . . . . . . . . . . . . . . . . .-13-
Section 5. Execution, Authentication and Delivery . . . . . . . . . . .-15-
Section 6. Registration, Registration of Transfer and Exchange . . . .-16-
Section 7. Mutilated, Destroyed, Lost and Stolen Right Certificates . .-17-
Section 8. Exercise of Rights; Purchase Price; Expiration Date of
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . .-18-
Section 9. Cancellation and Destruction of Right Certificates . . . . .-21-
Section 10. Reservation and Availability of Shares . . . . . . . . . . .-21-
Section 11. Record Date . . . . . . . . . . . . . . . . . . . . . . . .-22-
Section 12. Adjustment of Purchase Price, Number of Shares or
Number of Rights . . . . . . . . . . . . . . . . . . . . . .-23-
Section 13. Certificate of Adjusted Purchase Price or Number of Shares .-32-
Section 14. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power . . . . . . . . . . . . . . . . . . . . . . .-32-
Section 15. Fractional Rights and Fractional Shares . . . . . . . . . .-34-
Section 16. Rights of Action . . . . . . . . . . . . . . . . . . . . . .-36-
Section 17. Agreement of Right Holders . . . . . . . . . . . . . . . . .-37-
Section 18. Right Certificate Holder Not Deemed a Stockholder . . . . .-38-
Section 19. Concerning the Rights Agent . . . . . . . . . . . . . . . .-38-
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . .-39-
Section 21. Merger or Consolidation or Change of Name of Rights Agent. .-41-
Section 22. Change of Rights Agent . . . . . . . . . . . . . . . . . . .-42-
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
Section 23. Issuance of New Right Certificates . . . . . . . . . . . . .-43-
Section 24. Redemption . . . . . . . . . . . . . . . . . . . . . . . . .-44-
Section 25. Mandatory Redemption and Exchange . . . . . . . . . . . . .-45-
Section 26. Notice of Certain Events . . . . . . . . . . . . . . . . . .-46-
Section 27. Securities Laws Registrations . . . . . . . . . . . . . . .-48-
Section 28. Notices . . . . . . . . . . . . . . . . . . . . . . . . . .-48-
Section 29. Supplements and Amendments . . . . . . . . . . . . . . . . .-49-
Section 30. Successors . . . . . . . . . . . . . . . . . . . . . . . . .-50-
Section 31. Benefits of this Agreement . . . . . . . . . . . . . . . . .-50-
Section 32. Severability . . . . . . . . . . . . . . . . . . . . . . . .-50-
Section 33. Governing Law . . . . . . . . . . . . . . . . . . . . . . .-50-
Section 34. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .-51-
Section 35. Descriptive Headings . . . . . . . . . . . . . . . . . . . .-51-
</TABLE>
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Exhibits
Exhibit A - Certificate of Designation of Preferred Shares Series C
Junior Participating Preferred Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights To Purchase Preferred Shares
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RIGHTS AGREEMENT
This Rights Agreement, dated as of March 12, 1998, is between Meridian
Industrial Trust, Inc., a Maryland corporation (the "Company"), and First
Chicago Trust Company of New York, as Rights Agent.
WHEREAS, the Board of Directors of the Company, having determined its
actions to be in the interests of the Company, has authorized the creation of
Rights, has authorized and directed the issuance to the holders of record of
Common Shares of the Company outstanding on March 16, 1998 (the "Record Date"),
of one Right with respect to each Common Share of the Company outstanding on the
Record Date, and has further authorized and directed the issuance of one Right
with respect to each Common Share that shall become outstanding between the
Record Date and the earlier of the Distribution Date, the Redemption Date and
the Final Expiration Date; and
WHEREAS, the Board of Directors of the Company has authorized and directed
that the terms and conditions under which the Rights are to be distributed,
including without limitation those affecting the exercise thereof, the
securities or other property to be acquired thereby and the purchase price to be
paid therefor, shall be set forth in a written agreement between the Company and
a rights agent made for the benefit of the holders of the Rights to the extent
so provided therein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Voting Shares of the Company then
outstanding (other than Ameritech or Prudential, which each currently own
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approximately 30% of the Company's outstanding Voting Shares and for each
of which, together with their respective Affiliates and Associates, the
beneficial ownership threshold shall be 30% of the Company's outstanding
Voting Shares (which percentage shall be reduced automatically to an amount
equal to two percent more than either of such entities then current
beneficial ownership immediately following any dispositions of Voting
Shares by such entities, but in no event to an amount less than 15%)), but
shall not include the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Voting Shares by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or
more of the Voting Shares of the Company then outstanding; PROVIDED,
HOWEVER, that, if a Person shall become the Beneficial Owner of 15% or more
of the Voting Shares of the Company then outstanding (or such other
beneficial ownership threshold as may then be in effect for Ameritech or
Prudential) by reason of share purchases by the Company and shall, after
such share purchases by the Company and at a time when such Person is the
Beneficial Owner of 15% or more of the Voting Shares of the Company then
outstanding (or greater beneficial ownership threshold, if applicable),
become the Beneficial Owner of any additional Voting Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person".
Notwithstanding the foregoing, if the Board of Directors of the Company
(including at least a majority of the Continuing Directors) determines in
good faith that a Person who would otherwise be an "Acquiring Person", as
defined pursuant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to
be an "Acquiring Person" for any purposes of this Agreement.
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(b) "Agreement" shall mean this Rights Agreement as hereafter
amended from time to time.
(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 as in effect on the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of and shall
be deemed to "own beneficially" any securities which (without duplication):
(1) such Person or any of such Person's Affiliates or
Associates has the right to acquire (whether such right is exercisable
immediately or only after the passage of time, compliance with
regulatory requirements, the fulfillment of a condition or otherwise)
pursuant to any oral or written agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members (A) with respect to a bona fide
public offering of securities or (B) in connection with a placement of
securities pursuant to Rule 144A under the Securities Act or in
connection with its activities as a "broker," "dealer" or "market
maker" as defined in the Exchange Act), or upon the exercise of
conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; or the right to vote pursuant to
any agreement, arrangement or understanding; PROVIDED, HOWEVER, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own,(i) securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted for purchase
or exchange, or (ii) securities issuable upon exercise of Rights at
any time prior to any Person becoming an Acquiring Person;
(2) 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 Exchange Act), including pursuant to any agreement,
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arrangement or understanding, whether or not in writing; PROVIDED,
HOWEVER, that a Person shall not be deemed the Beneficial Owner of, or
to "beneficially own," any security under this subparagraph (2) as a
result of an agreement, arrangement or understanding to vote such
security (A) which arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations of the Exchange Act and (B) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable
or successor report); or
(3) are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any oral or written agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members (A) with respect to a bona fide
public offering of securities or (B) in connection with a placement of
securities pursuant to Rule 144A under the Securities Act) for the
purpose of acquiring, holding, voting (other than voting pursuant to a
revocable proxy as contemplated by the proviso to subparagraph (2) of
this paragraph) or disposing of any securities of the Company.
Notwithstanding anything in this definition to the contrary, the
phrase "then outstanding", when used with reference to a Person's
Beneficial Ownership of securities of the Company (or to the number of such
securities "beneficially owned"), shall mean the number of such securities
then issued and outstanding together with the number of such securities not
then actually issued and outstanding which such Person would be deemed to
own beneficially hereunder.
(e) "Ameritech" means State Street Bank and Trust Company, not
individually but solely as Trustee for Ameritech Pension Trust.
(f) "Board of Directors" means the Board of Directors of the
Company.
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(g) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of Texas are
authorized or obligated by law or executive order to close.
(h) "Close of Business" on any given date shall mean 5:00 P.M.,
Eastern time, on such date; PROVIDED, HOWEVER, that if such date is not a
Business Day it shall mean 5:00 P.M., Eastern time, on the next succeeding
Business Day.
(i) "Closing Price", with respect to any security, shall mean the
last sale price, regular way, on a specific Trading Day or, in case no such
sale takes place on such Trading Day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if such security
is not then listed or admitted to trading on the New York Stock Exchange,
as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which such security is listed or admitted to trading or, if such
security is not then listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System or such other system then in use, or, if on any
such Trading Day such security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in such security selected by the Board of
Directors. If such security is not publicly held or so listed or traded,
"Closing Price" shall mean the fair value per unit of such security as
determined in good faith by the Board of Directors, whose determination
shall be described and the Closing Price set forth in a statement filed
with the Rights Agent.
(j) "Common Shares" when used with reference to the Company shall
mean shares of capital stock of the Company which have no preference over
any other class of stock with respect
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to dividends or assets, which are not redeemable at the option of the
Company and with respect to which no sinking, purchase or similar fund is
provided and shall initially mean the shares of Common Stock, par value
$.001, of the Company. "Common Shares" when used with reference to any
Person other than the Company shall, if used with reference to a
corporation, mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary
of another Person, the Person or Persons which ultimately control such
first-mentioned Person and, if used with reference to any other Person,
mean the equity interest in such Person (or, if the net worth determined in
accordance with generally accepted accounting principles of another Person
(other than an individual) which controls such first-mentioned Person is
greater than such first-mentioned Person, then such other Person) with the
greatest voting power or managerial power with respect to the business and
affairs of such Person.
(k) "Company" shall mean Meridian Industrial Trust, Inc., a
Maryland corporation, and its successors.
(l) "Company Order" means a written request or order signed in the
name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Rights Agent.
(m) "Continuing Director" shall mean any member of the Board of
Directors (while such Person is a member of the Board) who either (1) was a
member of the Board of Directors prior to the Shares Acquisition Date,
(2) on or subsequent to the Shares Acquisition Date of Directors became a
member of the Board of Directors and whose nomination for election or
election to the Board of Directors was recommended or approved by a
majority of the Continuing Directors, then on the Board of Directors, or
(3) has served as a member of the Board of Directors for a period of at
least 18 months.
(n) "Stock Transfer Office" means the principal office of the
Rights Agent at which it administers its stock transfer business, which, in
the case of First Chicago Trust Company of New
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York shall, until hereafter changed, be its office at P.O. Box 2565,
Suite 4660, Jersey City, New Jersey 07303-2565.
(o) "Distribution Date" shall mean the earlier of (1) the tenth
Business Day after the Shares Acquisition Date or (2) the tenth Business
Day (or such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring Person)
after the date of commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company, or any trustee of or fiduciary with respect
to any such plan when acting in such capacity) of, or after the date of the
first public announcement of the intent of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any trustee of or fiduciary
with respect to any such plan when acting in such capacity) to commence, a
tender or exchange offer the consummation of which would result in any
Person becoming an Acquiring Person; PROVIDED, HOWEVER, that an occurrence
described in clause (2) of this definition above shall not cause the
occurrence of the Distribution Date if the Board of Directors (including at
a minimum a majority of the Continuing Directors) shall, prior to such
tenth Business Day (or such later date as described in clause (2) above),
determine that such tender or exchange offer is spurious, unless,
thereafter, the Board of Directors shall make a contrary determination, in
which event the Distribution Date shall occur on the later to occur of such
tenth Business Day (or such later date as described in clause (2) above)
and the date of such latter determination.
(p) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto.
(q) "Final Expiration Date" shall mean the Close of Business on
March 12, 2008.
(r) "Person" shall mean any individual, firm, corporation,
partnership, limited partnership, limited liability company, trust or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
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(s) "Preferred Shares" shall mean shares of Series C Junior
Participating Preferred Stock, par value $.001 per share, of the Company
having the rights and preferences set forth in the form of Certificate of
Designation of Series C Junior Participating Preferred Stock attached
hereto as EXHIBIT A.
(t) "Prudential" shall mean The Prudential Insurance Company of
America.
(u) "Purchase Price" shall mean the initial price at which the
holder of a Right may, subject to the terms and conditions of this
Agreement, purchase one one-thousandth (1/1000) of a Preferred Share (which
initial price is set forth in Section 8(b) hereof), as such price shall be
adjusted pursuant to the terms of this Agreement.
(v) "Redemption Date" shall mean the time at which the Rights are
redeemed pursuant to Section 24 herein or the time at which all of the
Rights are mandatorily redeemed and exchanged pursuant to Section 25
hereof.
(w) "Redemption Price" shall have the meaning specified in Section
24(b) herein.
(x) "Right" shall mean one preferred share purchase right which
initially represents the right of the registered holder thereof to purchase
one one-thousandth (1/1000) of a Preferred Share upon the terms and subject
to the conditions herein set forth.
(y) "Right Certificate" shall mean a certificate, in substantially
the form of EXHIBIT B attached to this Rights Agreement, evidencing the
Rights registered in the name of the holder thereof.
(z) "Rights Agent" shall mean First Chicago Trust Company of New
York, a New York corporation, and any successor thereto appointed in
accordance with the terms hereof, in its capacity as agent for the Company
and the holders of the Rights pursuant to this Agreement.
(aa) "Rights Register" and "Rights Registrar" shall have the
meanings specified in Section 6.
(bb) "Securities Act" shall mean the Securities Act of 1933, as
amended, and any successor statute thereto.
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(cc) "Shares Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition shall include without
limitation a report filed pursuant to Section 13(d) or Section 16(a) of the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
(dd) "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the outstanding capital stock or other equity
interests having ordinary voting power in the election of directors or
similar officials is owned, directly or indirectly, by such Person.
(ee) "Summary of Rights" shall mean a Summary of Rights to Purchase
Preferred Shares in substantially the form attached as EXHIBIT C to this
Agreement.
(ff) "Trading Day" shall mean a day on which the principal national
securities exchange on which any of the Voting Shares of the Company are
listed or admitted to trading is open for the transaction of business or,
if none of the Voting Shares of the Company is listed or admitted to
trading on any national stock exchange, a Business Day.
(gg) "Voting Shares" shall mean (1) the Common Shares of the
Company and (2) any other shares of capital stock of the Company entitled
to vote generally in the election of directors or entitled to vote together
with the Common Shares in respect of any merger or consolidation of the
Company, any sale of all or substantially all of the Company's assets or
any liquidation, dissolution or winding up of the Company. Whenever any
provision of this Agreement requires a determination of whether a number of
Voting Shares comprising a specified percentage of such Voting Shares is,
was or will be beneficially owned or has been voted, tendered, acquired,
sold or otherwise disposed of or a determination of whether a Person has
offered or proposed to acquire a number of Voting Shares comprising such
specified percentage, the number of Voting Shares comprising such specified
percentage of Voting Shares shall in every such case be deemed to be the
number of Voting Shares comprising the specified percentage of all the
Company's then outstanding Voting Shares.
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(hh) "Wholly-Owned Subsidiary" of a Person shall mean any
corporation or other entity all the outstanding capital stock or other
equity interests of which having ordinary voting power in the election of
directors or similar officials (other than directors' qualifying shares or
similar interests) are owned, directly or indirectly, by such Person.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares of the Company) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. ISSUE OF RIGHT CERTIFICATES. (a) Until the Distribution
Date,(1) outstanding Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) (A) with respect to Common Shares that are held
in certificated form, by the certificates for outstanding Common Shares of the
Company and not by separate Right Certificates and (B) with respect to Common
Shares that are held in book-entry form, by a notation in the records of the
Rights Agent (and the records of the Company's transfer agent, if different from
the Rights Agent), and (2) the right to receive Right Certificates will be
transferable only in connection with the transfer of Common Shares of the
Company. As soon as practicable after the Distribution Date, the Company will
prepare and execute, and the Rights Agent will countersign and send, by
first-class, insured, postage-prepaid mail, to each record holder of Common
Shares of the Company as of the Close of Business on the Distribution Date, at
the address of such holder shown on the stock transfer records of the Company, a
Right Certificate evidencing one Right for each Common Share so held, subject to
adjustments as provided herein. From and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon thereafter as practicable, the
Company will send a copy of a Summary of Rights, by first-class, postage-prepaid
mail, to each record holder of Common Shares of the Company as of the Close of
Business on the Record Date, at the address of such holder shown on the
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stock transfer records of the Company. With respect to Common Shares
outstanding on the Record Date held in certificated form, the certificates
evidencing such Common Shares shall, together with copies of such Summary of
Rights, thereafter also evidence the outstanding Rights (as such Rights may be
amended or supplemented) distributed with respect thereto until the earlier of
the Distribution Date or the date of surrender thereof to the Company's transfer
agent for registration of transfer or exchange of Common Shares. Until the
Distribution Date (or, if earlier, the Redemption Date or Final Expiration
Date), the surrender for registration of transfer or exchange of (1) any
certificate for Common Shares outstanding as of the Close of Business on the
Record Date, with or without a copy of the Summary of Rights attached thereto,
and (2) any Common Shares held in book-entry form, shall also constitute the
surrender for registration of transfer or exchange of the outstanding Rights
associated with the Common Shares represented thereby.
(c) The Company agrees that, at any time after the Record Date and
prior to the Distribution Date (or, if earlier, the Redemption Date or Final
Expiration Date) at which it issues any of its Common Shares upon original
issue, it will concurrently distribute to the holder of such Common Shares one
Right for each such Common Share, which Right shall be subject to the terms and
provisions of this Agreement and will evidence the right to purchase the same
number of one one-thousandths (1/1000) of a Preferred Share at the same Purchase
Price as the Rights then outstanding.
(d) Certificates for Common Shares issued after the Record Date
but prior to the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date, whether upon registration of transfer or exchange of
Common Shares outstanding on the Record Date or upon original issue or out of
treasury thereafter, shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Meridian
Industrial Trust, Inc. (the "Company") and First Chicago Trust Company
of New York, dated as of March 12, 1998 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of 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 without
charge after
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receipt of a written request therefor. As described in the Rights
Agreement, Rights issued to or acquired by any Acquiring Person or any
Affiliate or Associate thereof (each as defined in the Rights
Agreement) shall, under certain circumstances, become null and void.
With respect to certificates containing the foregoing legend, until the earlier
of the Distribution Date or the Final Expiration Date, outstanding Rights
associated with the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender of any such certificate
for registration of transfer or exchange of the Common Shares evidenced thereby
shall also constitute surrender for registration of transfer or exchange of the
outstanding Rights (as such Rights may be amended or supplemented) associated
with the Common Shares represented thereby.
(e) If the Company purchases or acquires any of its Common Shares
after the Record Date, but prior to the Distribution Date, any Rights associated
with such Common Shares shall be deemed canceled and retired so that the Company
shall not be entitled to exercise any Rights associated with the Common Shares
which are no longer outstanding.
Section 4. FORM OF RIGHT CERTIFICATES. (a) The form of Right
Certificates (and the forms of election to purchase Preferred Shares (or other
securities) and of assignment to be printed on the reverse thereof) shall in
form and substance be substantially the same as EXHIBIT B hereto and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Rights may from
time to time be listed or as may be necessary to conform to usage. Subject to
the provisions of Section 23 hereof, the Right Certificates, whenever issued,
shall be dated as of the date of authentication thereof, but, regardless of any
adjustments of the Purchase Price or the number of Preferred Shares (or other
securities) as to which a Right is exercisable (whether pursuant to this
Agreement or any future amendments or supplements to this Agreement), or both,
occurring after the Record Date and prior to the date of such authentication,
such Right Certificates may, on their face, without invalidating or otherwise
affecting any such adjustment, expressly entitle the holders
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thereof to purchase such number of Preferred Shares at the Purchase Price per
one one-thousandth (1/1000) of a Preferred Share as to which a Right would be
exercisable if the Distribution Date were the Record Date; no adjustment of the
Purchase Price or the number of Preferred Shares (or other securities) as to
which a Right is exercisable, or both, effected subsequent to the date of
authentication of any Right Certificate shall be invalidated or otherwise
affected by the fact that such adjustment is not expressly reflected on the face
or in the provisions of such Right Certificate.
(b) Pending the preparation of definitive Right Certificates, the
Company may execute, and upon Company Order the Rights Agent shall authenticate
and send, by first-class, insured, postage-prepaid mail, to each record holder
of Common Shares of the Company as of the Close of Business on the Distribution
Date, temporary Right Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Right Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Right Certificates may determine, as evidenced by their execution
of such Right Certificates.
(c) If temporary Right Certificates are issued, the Company will
cause definitive Right Certificates to be prepared without unreasonable delay.
After the preparation of definitive Right Certificates, the temporary Right
Certificates shall be exchangeable for definitive Right Certificates, upon
surrender of the temporary Right Certificates at the Stock Transfer Office of
the Rights Agent, without charge to the holder. Upon surrender for cancellation
of any one or more temporary Right Certificates, the Company shall execute and
the Rights Agent shall authenticate and deliver in exchange therefor one or more
definitive Right Certificates, evidencing a like number of Rights. Until so
exchanged, the temporary Right Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Right Certificates.
(d) Any Right Certificate issued pursuant to Section 3(a) or
Section 23 hereof that represents Rights beneficially owned by (1) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person,(2) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (3) a transferee of an
Acquiring Person
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(or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance of Section 8(e)
hereof, and any Right Certificate issued pursuant to Section 6 or Section 7
hereof upon transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent feasible)
the following legend:
The Rights represented by this Right 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 Right Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 8(e) of such Agreement.
Section 5. EXECUTION, AUTHENTICATION AND DELIVERY. (a) The Right
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Right Certificates
may be manual or facsimile. (b) Right Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Right Certificates or did not hold such offices at the date of
authentication of such Right Certificates. At any time and from time to time
after the execution and delivery of this Agreement and prior to the Distribution
Date, the Company may deliver Right Certificates executed by the Company to the
Rights Agent for authentication, together with a Company Order for the
authentication and delivery of such Right Certificates; and the Rights Agent in
accordance with such
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Company Order shall authenticate and deliver such Right Certificates as in this
Agreement provided and not otherwise.
(c) No Right Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears on
such Right Certificate a certificate of authentication substantially in the form
provided for herein executed by the Rights Agent by manual signature, and such
certificate upon any Right Certificate shall be conclusive evidence, and the
only evidence, that such Right Certificate has been duly authenticated and
delivered hereunder.
Section 6. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. From and
after the Distribution Date and prior to the earlier of the Redemption Date and
the Final Expiration Date, the Company shall cause to be kept at the Stock
Transfer Office of the Rights Agent a Rights Register (a "Rights Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Right Certificates and of transfers of
Rights. The Rights Agent is hereby appointed the registrar and transfer agent
(the "Rights Registrar") for the purpose of registering Right Certificates and
transfers of Rights as herein provided and the Rights Agent agrees to maintain
such Rights Register in accordance with such regulations so long as it continues
to be designated as Rights Registrar hereunder.
Upon surrender to the Rights Agent for registration of transfer of any
Right Certificate, the Company shall execute, and the Rights Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Right Certificates evidencing a like number of
Rights.
At the option of the holder, Right Certificates may be exchanged for other
Right Certificates upon surrender of the Right Certificates to be exchanged to
the Rights Agent. Whenever any Right Certificates are so surrendered for
exchange, the Company shall execute, and the Rights Agent shall authenticate and
deliver, the Right Certificates which the holder making the exchange is entitled
to receive.
All Right Certificates issued upon any registration of transfer or exchange
of Right Certificates shall be the valid obligations of the Company, evidencing
the same Rights, and entitled to the same benefits under this Agreement, as the
Right Certificates surrendered upon such registration of transfer or exchange.
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Every Right Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Rights Agent)
be duly endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Rights Registrar duly executed, by the
holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Right Certificates, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Right Certificates,
other than exchanges not involving any transfer.
The provisions of this Section 6 shall be subject to the provisions of
Section 4(d), Section 8(e) and Section 15.
Section 7. MUTILATED, DESTROYED, LOST AND STOLEN RIGHT CERTIFICATES.
(a) If any mutilated Right Certificate is surrendered to the Rights Agent, the
Company shall execute and the Rights Agent shall authenticate and deliver in
exchange therefor a new Right Certificate of like tenor, for a like number of
Rights and bearing a registration number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Rights
Agent (1) evidence to their satisfaction of the destruction, loss or theft of a
Right Certificate and (2) such security or indemnity, if any, as may be required
by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Rights Agent that such Right
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Rights Agent shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Right Certificate, a new Right
Certificate of like tenor, for a like number of Rights and bearing a
registration number not contemporaneously outstanding.
(c) Upon the issuance of any new Right Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Rights Agent) connected
therewith.
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(d) Every new Right Certificate issued pursuant to this Section in
lieu of any destroyed, lost or stolen Right Certificate shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Right Certificate shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Right Certificates duly issued hereunder.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Right
Certificates.
Section 8. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
(a) Subject to the provisions of Section 8(e) hereof, the registered holder of
any Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the Rights
Agent at its Stock Transfer Office, together with payment of the Purchase Price
for each one one-thousandth (1/1000) of a Preferred Share (or other securities)
as to which the Rights are exercised, at or prior to the earliest of (1) the
Close of Business on the Final Expiration Date,(2) the time of redemption on the
Redemption Date or (3) the time at which such Rights are mandatorily redeemed
and exchanged as provided in Section 25 hereof.
(b) The Purchase Price for each one one-thousandth (1/1000) of a
Preferred Share pursuant to the exercise of a Right shall initially be $100,
shall be subject to adjustment from time to time as provided in Sections 12 and
14 hereof and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the securities to be purchased and an amount
equal to any applicable transfer tax required to be paid by the holder of such
Right Certificate in accordance with Section 10 in cash, or by certified check
or cashier's check payable to
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the order of the Company, the Rights Agent shall thereupon promptly (1)(A)
requisition from any transfer agent of the Preferred Shares (or other
securities) certificates for such number of one one-thousandths of a Preferred
Share (or other securities) as are to be purchased and registered in such name
or names as may be designated by the registered holder of such Right Certificate
or, if appropriate, in the name of a depositary agent or its nominee, 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 Preferred Shares issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from such depositary agent appointed by the
Company, depositary receipts representing such number of one one-thousandths of
a Preferred Share as are to be purchased and registered in such name or names as
may be designated by such holder (in which case certificates for the Preferred
Shares represented by such receipts shall be deposited by the transfer agent
with such depositary agent), and the Company hereby directs such depositary
agent to comply with all such requests, (2) when appropriate, requisition from
the Company the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 15 hereof, (3) promptly after receipt of such
certificates or depositary receipts registered in such name or names as may be
designated by such holder, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate and (4) when appropriate,
after receipt, promptly deliver such cash to or upon the order of such holder.
In the event that the Company is obligated to issue other securities (including
Common Shares) of the Company, pay cash and/or distribute other property
pursuant to Section 12(a) hereof, the Company will make all arrangements
necessary so that other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
(d) If the registered holder of the Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equal to the Rights remaining unexercised shall be issued by
the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 15 hereof.
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(e) Notwithstanding anything in this Agreement to the contrary, if
any Person shall become an Acquiring Person, thereafter any Rights beneficially
owned by (1) such Acquiring Person or an Associate or Affiliate of such
Acquiring Person, (2) a transferee of such Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (3) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to
holders of equity interests in such Acquiring Person or to any Person with whom
the Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
has determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 8(e), shall become null
and void without any further action and no holder of such Rights shall have any
rights whatsoever with respect to such Rights, whether under any provision of
this Agreement or otherwise. The Company shall use all reasonable efforts to
insure that the provisions of this Section 8(e) and Section 4(d) hereof are
complied with, but shall have no liability to any holder of Right Certificates
or other Person as a result of its failure to make any determinations with
respect to any Acquiring Person or its Affiliates, Associates or transferees
hereunder.
Section 9. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All Right
Certificates surrendered for the purpose of exercise, transfer, split up or
exchange shall, if surrendered to the Company or to any of its other agents, be
delivered to the Rights Agent for such purpose and for cancellation or, if
surrendered to the Rights Agent for such purpose, shall be canceled by it. No
Right Certificates shall be authenticated in lieu of or in exchange for any
Right Certificates canceled as provided in this Section except as expressly
permitted by any of the provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the Rights Agent shall
so cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Right Certificates to the Company, or shall, pursuant to a
Company Order,
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destroy such canceled Right Certificates and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 10. RESERVATION AND AVAILABILITY OF SHARES. (a) The Company
covenants and agrees that it will cause to be reserved and kept available out of
its authorized and unissued Preferred Shares, the number of Preferred Shares
that will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) The Company further covenants and agrees that it will, from
and after the Distribution Date, cause to be reserved and kept available out of
its authorized and unissued Common Shares, the number of Common Shares of the
Company that will be sufficient to permit the exercise in full of all
outstanding Rights if adjusted pursuant to Section 12(a)(2).
(c) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares or Common Shares
of the Company issued upon exercise of Rights shall (subject to payment of the
Purchase Price) at the time of delivery of the certificates representing any
such Preferred Shares or Common Shares be duly authorized, validly issued, fully
paid and nonassessable. The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the Right
Certificates or of any Preferred Shares (or depositary receipts therefor) or
Common Shares of the Company upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a Person other
than, or in respect of the issuance or delivery of certificates or depositary
receipts for the Preferred Shares or Common Shares of the Company upon exercise
of Rights evidenced by Right Certificates in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
transfer or exercise or to issue or deliver any certificates or depositary
receipts for Preferred Shares or Common Shares of the Company upon the exercise
of any Rights until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of surrender
thereof) or until it has been established to the Company's satisfaction that no
such tax is due.
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(d) So long as the Common Shares 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 promptly cause, from and after such time
as the Rights become exercisable, all Common Shares and other securities
reserved for such issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
Section 11. RECORD DATE. Each Person in whose name any certificate for
Preferred Shares or Common Shares of the Company is issued upon the exercise of,
or upon mandatory redemption and exchange of, Rights shall for all purposes be
deemed to have become the holder of record of the Preferred Shares or Common
Shares represented thereby on, and such certificate shall be dated, (a) in the
case of the exercise of Rights, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made, or (b) in the case of the
mandatory redemption and exchange of Rights, the date of such mandatory
redemption and exchange; PROVIDED, HOWEVER, that, if the date of such surrender
and payment or mandatory redemption and exchange is a date upon which the
transfer books of the Company for its Preferred Shares or Common Shares, as the
case may be, 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 such transfer books of the Company are open.
Prior to the exercise of (or the mandatory redemption and exchange of) the
Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a holder of Preferred Shares (or Common Shares of the
Company) for which the Rights shall be exercisable, including without limitation
the rights 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 12. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS. The Purchase Price, the number and kind of shares of capital stock of
the Company covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 12.
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(a) (1) If the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Preferred Shares payable in Preferred
Shares,(B) subdivide the outstanding Preferred Shares,(C) combine the
outstanding Preferred Shares into a smaller number of Preferred Shares or (D)
issue any shares of its capital stock in a reclassification of the Preferred
Shares (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 12(a), the Purchase Price in effect
at the time of the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised thereafter shall be entitled to
receive, upon payment of the Purchase Price for the number of one
one-thousandths of a Preferred Share for which a Right was exercisable
immediately prior to such date, the aggregate number and kind of shares of
capital stock which, if such Right had been duly exercised immediately prior to
such date (at a time when the Preferred Shares transfer books of the Company
were open), such holder would have acquired upon such exercise and been entitled
to receive upon payment or effectuation of such dividend, subdivision,
combination or reclassification; PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right. If an event occurs which would require an adjustment
under both Section 12(a)(1) and Section 12(a)(2), the adjustment provided for in
this Section 12(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 12(a)(ii).
(2) Subject to action of the Board of Directors pursuant to
Section 25 of this Agreement, if any Person shall become an Acquiring Person,
each holder of a Right shall thereafter have a right to receive, upon exercise
thereof at a price equal to the then current Purchase Price multiplied by the
number of one one-thousandths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of
Preferred Shares, such number of Common Shares of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase Price by the number
of one
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one-thousandths of a Preferred Share for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share market price of
the Company's Common Shares (determined pursuant to Section 12(d)) on the date
such Person became an Acquiring Person. If any Person shall become an Acquiring
Person and the Rights shall then be outstanding, the Company shall not take any
action which would eliminate or diminish the benefits intended to be afforded by
the Rights.
(3) If on or after the Distribution Date there shall not be
sufficient Common Shares issued but not outstanding, or authorized but unissued,
to permit the exercise in full of all outstanding Rights in accordance with the
foregoing subparagraph (2) of this Section 12(a), the Company agrees to take all
such action as is within its power, including without limitation appropriate
action by its Board of Directors, as may be necessary to amend the Company's
charter to authorize additional Common Shares for issuance upon exercise of the
Rights. If, notwithstanding the foregoing, the stockholders shall not approve
an amendment to the Company's charter authorizing such additional Common Shares,
the adjustment prescribed in Section 12(a)(2) shall not be made but, in lieu
thereof, each holder of a Right shall thereafter have the right to receive, upon
exercise thereof in accordance with the terms of this Agreement, such number of
one one-thousandths of Preferred Shares as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share market price of
one one-thousandth of a Preferred Share (determined pursuant to Section 12(d))
on the date such Person became an Acquiring Person.
(b) If the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into or exchangeable for Preferred Shares or
equivalent preferred shares at a price per Preferred Share or equivalent
preferred share (together with any additional consideration required upon
conversion or exchange in the case
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of a security convertible into or exchangeable for Preferred Shares or
equivalent preferred shares), less than the current per share market price of
the Preferred Shares (determined pursuant to Section 12(d) on such record date),
the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred shares so to be offered (together with the aggregate of any
additional consideration required upon conversion or exchange in the case of any
convertible or exchangeable securities so to be offered) would purchase at such
current market price and the denominator of which shall be the number of
Preferred Shares outstanding on such record date plus the number of additional
Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into or for which the convertible or exchangeable
securities so to be offered are initially convertible or exchangeable);
PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right. In case all
or part of such subscription or purchase price may be paid in a form other than
cash, the value of such consideration shall be as determined in good faith by
the Board of Directors, whose determination shall be described in a statement
filed with the Rights Agent. Preferred Shares owned by or held for the account
of the Company or any of its Subsidiaries shall not be deemed outstanding for
the purpose of any computation described in this Section 12(b). The adjustment
described in this Section 12(b) shall be made successively whenever such a
record date is fixed; and, if none of such rights, options or warrants are so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred
to in
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Section 12(b)), the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the then current
per share market price of the Preferred Shares (determined pursuant to
Section 12(d)) on such record date, less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be described in
a statement filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such subscription rights or
warrants applicable to one Preferred Share and the denominator of which shall be
such current per share market price of the Preferred Shares; PROVIDED, HOWEVER,
that in no event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of capital stock of the
Company to be issued upon the exercise of one Right. Such adjustments shall be
made successively whenever such a record date is fixed; and, if such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(d) (1) For the purpose of any computation hereunder, the
"current per share market price" of the Common Shares on any date shall be
deemed to be the average of the daily Closing Prices per share of such
Common Shares for the 30 consecutive Trading Days immediately prior to such
date; PROVIDED, HOWEVER, that, if the issuer of such Common Shares shall
announce (A) a dividend or distribution on such Common Shares payable in
such Common Shares or securities convertible into such Common Shares or (B)
any subdivision, combination or reclassification of such Common Shares, and
the ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification, shall occur during
such period of 30 Trading Days, then, and in each such case, the current
per share market price of the Common Shares shall be appropriately adjusted
to reflect the current market price per Common Share equivalent.
(2) For the purpose of any computation hereunder, the "current per
share market price" of the Preferred Shares shall be determined in the same
manner as set forth above for Common Shares in paragraph (1) of this
Section 12(d). If the current per share market price of the Preferred
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Shares cannot be determined in the manner provided above, the "current per
share market price" of the Preferred Shares shall be conclusively deemed to
be the current per share market price of the Common Shares (determined in
the manner provided above) multiplied by one thousand.
(e) No adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Purchase Price; PROVIDED, HOWEVER, that any adjustments which by reason of this
Section 12(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
Section 12 shall be made to the nearest cent or to the nearest ten-thousandth of
a Common Share or other share or one ten-millionth of a Preferred Share, as the
case may be, and references herein to the "number of one one-thousandths of a
Preferred Share" (or similar phrases) shall be construed to include fractions of
one one-thousandth of a Preferred Share. Notwithstanding the first sentence of
this Section 12(e), any adjustment required by this Section 12 shall be made no
later than the earlier of (1) three years from the date of the transaction which
requires such adjustment or (2) the thirtieth day preceding the Final Expiration
Date.
(f) If as a result of an adjustment made pursuant to
Section 12(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Preferred Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares contained in this Section 12, and the provisions of this
Agreement, including without limitation Sections 8, 10, 11 and 14, with respect
to the Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall, whether or not the Right
Certificate evidencing such Rights reflects such adjusted Purchase Price,
evidence the right to purchase, at the adjusted Purchase Price, the number of
one one-thousandths of a Preferred Share purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided
herein.
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(h) Unless the Company shall have exercised its election as
provided in Section 12(i), upon each adjustment of the Purchase Price pursuant
to Section 12(b) or 12(c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at
the adjusted Purchase Price per one one-thousandth of a Preferred Share, that
number of one one-thousandths of a Preferred Share obtained by (1) multiplying
(x) the number of one-thousandths of a share covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect immediately prior
to such adjustment of the Purchase Price and (2) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
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(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights outstanding in lieu of any
adjustment in the number of one one-thousandths of a Preferred Share purchasable
upon the exercise of a Right. Each Right outstanding after such adjustment of
the number of Rights shall be exercisable for the number of one one-thousandths
of a Preferred Share for which a Right was exercisable immediately prior to such
adjustment of the Purchase Price. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This record date may be
the date on which the Purchase Price is adjusted or any day thereafter, but, if
the Right Certificates have been issued, shall be at least 10 days later than
the date of the public announcement. Until such record date, however, any
adjustment in the number of one one-thousandths of a Preferred Share for which a
Right shall be exercisable made as required by this Agreement shall remain in
effect. If Right Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 12(i), the Company shall, as promptly
as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 15 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and authenticated in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
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(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-thousandths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of one one-thousandths
of a Preferred Share which were expressed in the initial Right Certificates
issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-thousandth of the amount of
consideration per Preferred Share determined by the Board of Directors to be
capital, or below one one-thousandth of the par value, if any, per Preferred
Share issuable upon exercise of the Rights, the Company agrees to take such
corporate action as is within its power, including without limitation
appropriate action by its Board of Directors, and which is, in the opinion of
its counsel, necessary in order that the Company may validly and legally issue
fully paid and nonassessable one one-thousandths of Preferred Shares at such
adjusted Purchase Price.
(l) In any case in which this Section 12 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of the Preferred Shares or other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Preferred Shares or 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
securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 12 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 12, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any combination or subdivision of the Preferred Shares, issuance
wholly for cash of any of the Preferred Shares at less than the current market
price, issuance wholly for cash of Preferred Shares or securities which
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by their terms are convertible into or exchangeable for Preferred Shares,
dividends on Preferred Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to in subsection (b) of this Section 12, hereafter
effected by the Company to holders of its Preferred Shares shall not be taxable
to such stockholders.
(n) If at any time prior to the Distribution Date, the Company
shall (1) declare or pay any dividend on the Common Shares payable in Common
Shares or (2) effect a subdivision or combination of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (A) the
Purchase Price in effect at the time of the record date for such dividend or of
the effective date of such subdivision or combination shall be adjusted by
multiplying such Purchase Price by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such event and the
denominator of which is the number of Common Shares outstanding immediately
after such event, and (B) the number of Rights outstanding immediately after
such event shall be adjusted, either through cancellation of outstanding Rights
or through distribution of additional Rights (but without duplication of the
Company's obligations under Section 3(c)), so that the certificate evidencing
each Common Share outstanding immediately after such event shall also evidence
the associated Right to purchase the same number of one one-thousandths of a
Preferred Share as to which a Right would have entitled the holder thereof to
purchase immediately prior to such event. The adjustment provided for in this
Section 12(n) shall be made successively whenever such a dividend is declared or
paid or such a subdivision or combination is effected. If an event occurs which
would require an adjustment under Section 12(a)(2) and this Section 12(n), the
adjustments provided for in this Section 12(n) shall be in addition and prior to
any adjustment required pursuant to Section 12(a)(2).
Section 13. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Section 12 or 14 hereof, the
Company shall (a) promptly prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) promptly
file with the Rights Agent and with each transfer agent for the Common Shares of
the Company
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and the Preferred Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of record of a Right Certificate in accordance with
Section 28 hereof.
Section 14. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
POWER. If, directly or indirectly, (a) the Company shall consolidate with, or
merge with and into, any other Person, (b) any Person shall merge with and into
the Company and the Company shall be the continuing or surviving corporation of
such merger and, in connection with any such merger, all or part of the Common
Shares of the Company shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other property,
or (c) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or a series of two or
more transactions, assets of the Company or its Subsidiaries which constitute
more than 50% of the assets or which produce more than 50% of the earning power
of the Company and its Subsidiaries (taken as a whole) to any Person or any
Affiliate or Associate of such Person other than the Company or one or more of
its Wholly-Owned Subsidiaries, then, and in each such case, the Company agrees
that, as a condition to engaging in any such transaction, it will make or cause
to be made proper provision so that (1) each holder of a Right (except as
otherwise provided herein) shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this Agreement and in lieu of
Preferred Shares, such number of Common Shares of such other Person (including
the Company as successor thereto or as the surviving corporation) or, if such
other Person is a Subsidiary of another Person, of the Person or Persons (other
than individuals) which ultimately control such first-mentioned Person, as shall
be equal to the result obtained by (X) multiplying the then current Purchase
Price by the number of one one-thousandths of a Preferred Share for which a
Right is then exercisable (without taking into account any adjustment previously
made pursuant to Section 12(a)(2)) and dividing that product by (Y) 50% of the
current per share market price of the Common Shares of such other Person
(determined pursuant to Section 12(d) hereof) on the date of consummation of
such consolidation, merger, sale or transfer;(2) the issuer of such Common
Shares shall thereafter be liable for, and shall assume,
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by virtue of such consolidation, merger, sale or transfer, all the obligations
and duties of the Company pursuant to this Agreement;(3) the term "Company", as
used herein, shall thereafter be deemed to refer to such issuer; and (4) such
issuer shall take such steps (including without limitation the reservation of a
sufficient number of shares of its Common Shares in accordance with Section 10)
in connection with such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to the Common Shares thereafter deliverable upon the exercise of
the Rights. The Company shall not enter into any transaction of the kind
referred to in this Section 14 if at the time of such transaction there are
outstanding any rights, warrants, instruments or securities or any agreement or
arrangements which, as a result of the consummation of such transaction, would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the Company and
such issuer shall have executed and delivered to the Rights Agent an agreement
supplemental to this Agreement complying with the provisions of this Section 14.
The provisions of this Section 14 shall similarly apply to successive mergers or
consolidations or sales or other transfers. For the purposes of this Section
14, 50% of the assets of the Company and its Subsidiaries shall be determined by
reference to the book value of such assets as set forth in the most recent
consolidated balance sheet of the Company and its Subsidiaries (which need not
be audited) and 50% of the earning power of the Company and its Subsidiaries
shall be determined by reference to the mathematical average of the operating
income resulting from the operations of the Company and its Subsidiaries for the
two most recent full fiscal years as set forth in the consolidated and
consolidating financial statements of the Company and its Subsidiaries for such
years; PROVIDED, HOWEVER, that, if the Company has, during such period, engaged
in one or more transactions to which purchase accounting is applicable, such
determination shall be made by reference to the pro forma operating income of
the Company and its Subsidiaries giving effect to such transactions as if they
had occurred at the commencement of such two-year period.
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Section 15. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The Company shall
not be required to issue or distribute Right Certificates which evidence
fractional Rights. If, on the Distribution Date or thereafter, as a result of
any adjustment effected pursuant to Section 12(i) or otherwise hereunder, a
Person would otherwise be entitled to receive a Right Certificate evidencing a
fractional Right, the Company shall, in lieu thereof, pay or cause to be paid to
such Person an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purpose of this Section 15(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.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-thousandth
of a Preferred Share) upon exercise of the Rights or to distribute certificates
which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-thousandth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-thousandth of a Preferred
Share may, at the election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners of the Preferred Shares. If, on
the Distribution Date or thereafter, as a result of any adjustment effected
hereunder in the number of one one-thousandths of a Preferred Share as to which
a Right has become exercisable, a Person would otherwise be entitled to receive
a fractional Preferred Share that is not an integral multiple of one
one-thousandth of a Preferred Share, the Company shall, in lieu thereof, pay to
such Person at the time such Right is exercised as herein provided an amount in
cash equal to the same fraction (which is not an integral multiple of one
one-thousandth of a Preferred Share) of the current market value of one
Preferred Share. For purposes of this Section 15(b), the current market value
of a Preferred Share shall be the Closing Price of a Preferred Share for the
Trading Day immediately prior to the date of such exercise.
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(c) Should any adjustment contemplated by Section 12(a)(2) or any
mandatory redemption and exchange contemplated by Section 25 occur, the Company
shall not be required to issue fractions of Common Shares upon exercise of the
Rights or to distribute certificates which evidence fractional Common Shares.
If after any such adjustment or mandatory redemption and exchange, a Person
would otherwise be entitled to receive a fractional Common Share of the Company
upon exercise of any Right Certificate or upon mandatory redemption and exchange
as contemplated by Section 25, the Company shall, in lieu thereof, pay to such
Person at the time such Right is exercised as herein provided or upon such
mandatory redemption and exchange an amount in cash equal to the same fraction
of the current market value of one Common Share. For purposes of this
Section 15(c), the current market value of a Common Share shall be the Closing
Price of a Common Share for the Trading Day immediately prior to the date of
such exercise or the date of such mandatory redemption and exchange.
(d) The holder of a Right by the acceptance thereof expressly waives his
right to receive any fractional Rights or any fractional shares upon exercise or
mandatory redemption and exchange of a Right (except as provided above).
Section 16. RIGHTS OF ACTION. (a) All rights of action in respect of the
obligations and duties owed to the holders of the Rights under this Agreement
are vested in the registered holders of the Rights; and, without the consent of
the Rights Agent or of the holder of any other Rights, any registered holder of
any Rights may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding, judicial or otherwise,
against the Company to enforce, or otherwise to act in respect of, such holder's
right to exercise such Rights in the manner provided in the Right Certificate
evidencing such Rights and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
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(b) No right or remedy herein conferred upon or reserved to the registered
holder of Rights is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy, whether hereunder or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
(c) No delay or omission of any registered holder of Rights to exercise
any right or remedy accruing hereunder shall impair any such right or remedy or
constitute a waiver of any default hereunder or an acquiescence therein. Every
right and remedy given hereunder or by law to such holders may be exercised from
time to time, and as often as may be deemed expedient, by such holders.
Section 17. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares of the
Company;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the Stock Transfer Office of the Rights Agent duly endorsed or accompanied by a
proper instrument of transfer;
(c) the Company and the Rights Agent may deem and treat the person
in whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes, and neither the Company nor the Rights Agent shall be affected by any
notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability
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to perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or ruling issued by a
court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation; PROVIDED,
HOWEVER, the Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 18. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No holder,
as such, of any Right (whether or not then evidenced by a Right Certificate)
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of Preferred Shares, Common Shares of the Company or any other securities
of the Company which may at any time be issuable on the exercise (or mandatory
redemption and exchange) of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer upon any
such holder, as such, any of the rights of a stockholder of the Company,
including without limitation any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, to give or
withhold consent to any corporate action, to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 26) or to receive
dividends or subscription rights or otherwise.
Section 19. 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 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.
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(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 Right Certificate or
certificate for Preferred Shares, Common Shares or other securities of the
Company, Company Order, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
executed and, where necessary, verified or acknowledged, by the proper person or
persons, or otherwise upon the advice of its counsel as set forth in Section 20
hereof.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the 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 be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
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 to the Company or any other
Person only for its own negligence, bad faith or willful misconduct. Anything
in this Agreement to the contrary notwithstanding, in no event shall the Rights
Agent be liable for special, indirect or consequential loss or damage of any
kind
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whatsoever (including, but not limited to, lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its authentication thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not have any responsibility with respect to the
validity of this Agreement or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or with respect to the validity or
execution of any Right Certificate (except its authentication thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 12(a)(2) hereof) or any adjustment in
the terms of the Rights (including the manner, method or amount thereof)
provided for in Sections 3, 12, 14, 24 and 25, or the ascertainment of the
existence of facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after actual
notice that such change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares or Common Shares to be
issued pursuant to this Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares will, when issued, be duly authorized, validly
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, any Vice
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President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary 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.
(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 of the Company resulting from any such act, default,
neglect or misconduct provided reasonable care was exercised in the selection
and continued employment thereof.
Section 21. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the corporate trust or
stock transfer business of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 22. If at the time such
successor Rights Agent shall succeed to the agency created by this Agreement any
of the Right Certificates shall have been authenticated but not delivered, any
such successor Rights Agent may adopt the authentication of the predecessor
Rights Agent and deliver such Right Certificates so authenticated, and, if at
that time any of the Right Certificates shall not have been
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authenticated, any successor Rights Agent may authenticate such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
If at any time the name of the Rights Agent shall be changed and at such
time any of the Right Certificates shall have been authenticated but not
delivered, the Rights Agent may adopt the authentication under its prior name
and deliver Right Certificates so authenticated; and, in case at that time any
of the Right Certificates shall not have been authenticated, the Rights Agent
may authenticate such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
Section 22. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
for the Common Shares of the Company and the Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent for the Common Shares of
the Company and the Preferred Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the registered
holder of a Right Certificate (or, prior to the Distribution Date, of Common
Shares), then any registered holder of a Right Certificate (or, prior to the
Distribution Date, of Common Shares) may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of the United States or
of any state of the United States, which is authorized under
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such laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million or (b) an Affiliate of a corporation described in clause (a)
of this sentence. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and 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 for
the Common Shares of the Company and the Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right Certificates. Failure
to give any notice provided for in this Section 22, 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 23. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price per share and the number or kind or class of shares or
other securities purchasable under the Right Certificates made in accordance
with the provisions of this Agreement.
Section 24. REDEMPTION. (a) The Rights may be redeemed by action of the
Board of Directors pursuant to paragraph (b) of this Section 24, or may be
redeemed and exchanged by action of the Board of Directors pursuant to Section
25 herein, but shall not be redeemed in any other manner.
(b) The Board of Directors (including at least a majority of the
Continuing Directors) may, at its option, at any time prior to the time any
Person becomes an Acquiring Person redeem all but not less than all the then
outstanding Rights at a redemption price of one-tenth of one cent ($0.001) per
Right then outstanding, appropriately adjusted to reflect any adjustment in the
number of Rights outstanding pursuant
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to Section 12(i) herein (such redemption price being hereinafter referred to as
the "Redemption Price"). Any such redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
(c) The right of the registered holders of Right Certificates to exercise
the Rights evidenced thereby or, if the Distribution Date has not theretofore
occurred, the inchoate right of the registered holders of Rights to exercise the
same shall, without notice to such holders or to the Rights Agent and without
further action, terminate and be of no further force or effect effective as of
the time of adoption by the Board of Directors of a resolution authorizing and
directing the redemption of the Rights pursuant to paragraph (b) of this
Section 24 (or, alternatively, if the Board of Directors qualified such action
as to time, basis or conditions, then at such time, on such basis and with such
conditions as the Board of Directors may have established pursuant to such
paragraph (b)); thereafter, the only right of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give public notice of
any redemption resolution pursuant to paragraph (b) of this Section 24;
PROVIDED, HOWEVER, that the failure to give, or any defect in, any such notice
shall not affect the validity of such redemption. Within 10 days after the
adoption of any redemption resolution pursuant to paragraph (b) of this Section
24, the Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agents for the
Common Shares. 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 shall state the method by which the payment of the
Redemption Price will be made.
(d) Neither the Company nor any of its Affiliates or Associates may
acquire (other than, in the case of such Affiliates and Associates, in their
capacity as holders of Common Shares of the Company), redeem or purchase for
value any Rights at any time in any manner other than as specifically set forth
in this
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Section 24 or in Section 25 herein, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 25. MANDATORY REDEMPTION AND EXCHANGE. (a) The Board of Directors
may, at its option, at any time after any Person becomes an Acquiring Person,
issue Common Shares of the Company in mandatory redemption of, and in exchange
for, all or part of the then outstanding and exercisable Rights (which shall not
include Rights that have become null and void pursuant to the provisions of
Section 8(e) hereof) at an exchange ratio of one Common Share for each two
Common Shares for which each Right is then exercisable pursuant to the
provisions of Section 12(a)(2) hereof. Notwithstanding the foregoing, the Board
of Directors shall not be empowered to effect such redemption and exchange at
any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any such Subsidiary, or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50% or more of the Voting Shares then outstanding.
(b) Immediately upon the action of the Board of Directors ordering the
mandatory redemption and exchange of any Rights pursuant to subsection (a) of
this Section 25 and without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive such number of Common Shares as is
provided in paragraph (a) of this Section 25. The Company shall promptly give
public notice of any such redemption and exchange; PROVIDED, HOWEVER, that the
failure to give, or any defect in, such notice shall not affect the validity of
such redemption and exchange. The Company promptly shall mail a notice of any
such redemption and exchange to all the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of mandatory
redemption and exchange shall state the method by which the redemption and
exchange of the Common Shares for Rights will be effected and, in the event of
any partial redemption and exchange, the number of Rights which will be redeemed
and exchanged. Any partial
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redemption and exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become null and void
pursuant to the provisions of Section 8(e) hereof) held by each holder of
Rights.
(c) In any mandatory redemption and exchange pursuant to this Section 25,
the Company, at its option, may substitute Preferred Shares (or equivalent
preferred shares, as such term is defined in Section 12(b) hereof) for Common
Shares, at the initial rate of one one-thousandth of a Preferred Share (or
equivalent preferred share) for each Common Share, as appropriately adjusted.
Section 26. NOTICE OF CERTAIN EVENTS. If the Company shall, on or after
the Distribution Date, propose (a) to pay any dividend or other distribution
payable in stock of any class of the Company or any Subsidiary of the Company to
the holders of its Preferred Shares, (b) to distribute to the holders of its
Preferred Shares rights or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other
securities, rights or options,(c) to make any other distribution to the holders
of its Preferred Shares (other than a regular quarterly cash dividend),(d) to
effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred
Shares), (e) to effect any consolidation or merger into or with, or to effect
any sale or other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of more than
50% of the assets or earning power of the Company and its Subsidiaries
(determined as provided in Section 14 herein) to, any other Person (other than
the Company or a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries),(f) to
effect the liquidation, dissolution or winding up of the Company or (g)if the
Rights have theretofore become exercisable with respect to Common Shares
pursuant to Section 12(a)(2) herein, to declare or pay any dividend or other
distribution on the Common Shares payable in Common Shares or in stock of any
other class of the Company or any Subsidiary of the Company or to effect a
subdivision or combination of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) then, in each such
case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 28 hereof, notice of such proposed action, which shall
specify the date of authorization by the Board of Directors of, and record date
for, such stock dividend or such distribution
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of rights or warrants or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, winding up, subdivision or
combination is to take place and the date of participation therein by the
holders of the Common Shares of the Company or the Preferred Shares, or both, if
any such date is to be fixed. Such notice shall be so given in the case of any
action covered by clause (a), (b) or (g) above at least 20 days prior to the
record date for determining holders of the Preferred Shares or of the Common
Shares of the Company, as the case may be, for purposes of such action, and in
the case of any such other action, at least 20 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Preferred Shares or Common Shares of the Company, as the case may
be, whichever shall be the earlier. If any of the events set forth in
Section 12(a)(2) of this Agreement shall occur, then, in any such case, the
Company shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 28 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 12(a)(2) hereof.
Section 27. SECURITIES LAWS REGISTRATIONS. To the extent legally
required, the Company agrees that it will prepare and file, no later than the
Distribution Date, and will use its best efforts to cause to be declared
effective, a registration statement under the Securities Act registering the
offering, sale and delivery of the Preferred Shares issuable upon exercise of
the Rights, and the Company will, thereafter, use its best efforts to maintain
such registration statement (or another) continuously in effect so long as any
Rights remain outstanding and exercisable with respect to Preferred Shares.
Should the Rights become exercisable with respect to securities of the Company
or one of its Subsidiaries other than Preferred Shares, the Company agrees that
it will, to the extent legally required, promptly thereafter prepare and file,
or cause to be prepared and filed, and will use its best efforts to cause to be
declared effective, a registration statement under such Act registering the
offering, sale and delivery of such other securities and the Company will,
thereafter, use its best efforts to maintain such registration statement (or
another) continuously in effect so long as any outstanding Rights are
exercisable with respect to such securities. The Company further agrees to use
its best efforts, from and after the Distribution Date, to qualify or register
for sale the Preferred Shares or other
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securities of the Company or one of its Subsidiaries issuable upon exercise of
the Rights under the securities or "blue sky" laws (to the extent legally
required thereunder) of all jurisdictions in which registered holders of Right
Certificates reside determined by reference to the Rights Register.
Section 28. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Meridian Industrial Trust, Inc.
455 Market Street, 17th Floor
San Francisco, California 94105
Subject to the provisions of Section 22 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
First Chicago Trust Company of New York
P.O. Box 2565, Suite 4660
Jersey City, New Jersey 07303-2565
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the Rights
Register of the Company or, prior to the Distribution Date, on the stock
transfer records for the Common Shares of the Company.
Section 29. SUPPLEMENTS AND AMENDMENTS. The Company may from time to time
supplement or amend this Agreement (which supplement or amendment shall be
evidenced by a writing signed by the Company and the Rights Agent) without the
approval of any holders of Right Certificates in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, to make any other provisions in
regard to matters or questions
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arising hereunder, or to add, delete, modify or otherwise amend any provision,
which the Company may deem necessary or desirable, including without limitation
extending the Final Expiration Date and, provided that at the time of such
amendment or supplement the Distribution Date has not occurred, the period
during which the Rights may be redeemed; PROVIDED, HOWEVER, that no amendment
that would effect the manner in which Rights may be redeemed or that would
result in a cancellation of the Rights or a termination of this Agreement shall
be made without the approval of at least a majority of the Continuing Directors;
and PROVIDED FURTHER, that, from and after such time as any Person becomes an
Acquiring Person, any such amendment or supplement shall not materially and
adversely affect the interests of the holders of Right Certificates. Without
limiting the foregoing, the Board of Directors may by resolution adopted at any
time prior to such time as any Person becomes an Acquiring Person amend this
Agreement to lower the threshold set forth in the definitions of Acquiring
Person and Distribution Date herein to a percentage not less than the greater of
(a) any percentage greater than the largest percentage of the outstanding Voting
Shares then known to the Company to be beneficially owned by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any trustee of or fiduciary
with respect to any such plan when acting in such capacity), and (b) 10% if the
Board of Directors shall determine that a Person whose interests are adverse to
the Company and its stockholders may seek to acquire control of the Company.
Section 30. 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 31. 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 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.
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Section 32. 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.
Section 33. GOVERNING LAW. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Maryland and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 34. 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 35. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
MERIDIAN INDUSTRIAL TRUST, INC.
Attest:
By: /s/ Robert A. Dobbin By: /s/ Milton K. Reeder
-------------------------------- -----------------------------------
Title: Secretary Title: President and Chief Financial
Officer
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
As Rights Agent
Attest:
By: /s/ David Cohn By: /s/ Joanne Gorostiola
-------------------------------- -----------------------------------
Title: Authorized Officer Authorized Officer
David Cohn Joanne Gorostiola
Customer Service Officer Assistant Vice President
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EXHIBIT A
MERIDIAN INDUSTRIAL TRUST, INC.
-----------
ARTICLES SUPPLEMENTARY CLASSIFYING
150,000 SHARES OF PREFERRED STOCK AS
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
-----------
Meridian Industrial Trust, Inc., a Maryland corporation (the
"CORPORATION"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: Pursuant to Section 2-208 of the Maryland General Corporation Law
and the authority granted to and vested in the Board of Directors of the
Corporation (the "BOARD OF DIRECTORS") by Article 4 of the Third Amended and
Restated Articles of Incorporation of the Corporation (the "CHARTER"), the Board
of Directors at a meeting duly convened and held on February 27, 1998, adopted
resolutions classifying 150,000 unissued shares of the preferred stock of the
Corporation as Series C Junior Participating Preferred Stock (the "SERIES C
PREFERRED STOCK") and setting the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemption thereof,
which, upon any restatement of the Charter of the Corporation, shall become a
part of Article 4 of the Charter.
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series C Junior Participating Preferred Stock" (the "Series C
Preferred Stock") and the number of shares constituting the Series C Preferred
Stock shall be 150,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; PROVIDED, that no decrease shall reduce
the number of shares of Series C Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series C Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series C Preferred Stock with respect to dividends, the holders of shares of
Series C Preferred Stock, in preference to the holders of Common Stock, par
value $0.001 per share (the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable on the first business day of February, May, August and
November in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date") as provided in paragraphs (B) and (C) of this Section 2
in an amount per share (rounded to the nearest cent) equal to the greater of
(i) $1.00 in cash or (ii) subject to the provision for adjustment hereinafter
set forth, 1,000 times the aggregate per share amount (payable
A-1
<PAGE>
in cash) of all cash dividends, and 1,000 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series C Preferred Stock. If
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series C Preferred Stock
were entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that was outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series C Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); PROVIDED that, if no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share payable in cash
on the Series C Preferred Stock shall nevertheless accrue and be cumulative on
the outstanding shares of Series C Preferred Stock as provided in paragraph (C)
of this Section 2.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series C Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series C Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series C Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series C Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series C Preferred
Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth, each
share of Series C Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of
A-2
<PAGE>
the stockholders of the Corporation. If the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination of the outstanding shares of Common Stock
(by reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to which
holders of shares of Series C Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that was outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series C Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein or as otherwise provided by law, holders of
Series C Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series C Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series C Preferred Stock outstanding shall have
been paid in full, or declared and a sum sufficient for the payment therefor be
set apart for payment and be in the process of payment, the Corporation shall
not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Preferred Stock,
except dividends paid ratably on the Series C Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred Stock,
PROVIDED that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (as to both dividends and upon
dissolution, liquidation or winding up) to the Series C Preferred Stock; or
A-3
<PAGE>
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series C Preferred Stock or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series C Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the holders of the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series C Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Charter, or in any other Articles Supplementary creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made
(A) to the holders of shares of stock ranking junior (either as to dividends or
as to amounts payable upon liquidation, dissolution or winding up) to the
Series C Preferred Stock unless, prior thereto, the holders of Series C
Preferred Stock shall have received an amount per share (rounded to the nearest
cent) equal to the greater of (i) $1,000 per share, or (ii) an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock, plus, in either case, an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(B) to the holders of stock ranking on a parity (either as to dividends or as to
amounts payable upon liquidation, dissolution or winding up) with the Series C
Preferred Stock, except distributions made ratably on the Series C Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such Shares are entitled upon such liquidation, dissolution or
winding up. If the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (A)(ii) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
A-4
<PAGE>
Section 7. CONSOLIDATION, MERGER, ETC. If the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, or any combination thereof, then in any
such case each share of Series C Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount of stock, securities, cash or any other property (payable in
kind), or any combination thereof, as the case may be, into which or for which
each share of Common Stock is changed or exchanged. If the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series C Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that was outstanding immediately
prior to such event.
Section 8. REDEMPTION. The shares of Series C Preferred Stock shall not
be redeemable. So long as any shares of Series C Preferred Stock remain
outstanding, the Corporation shall not purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred Stock unless
the Corporation shall substantially concurrently also purchase or acquire for
consideration a proportionate number of shares of Series C Preferred Stock.
Section 9. RANK. The Series C Preferred Stock shall rank, with respect to
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
Section 10. AMENDMENT. The Charter of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences, privileges or special rights of the Series C Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series C Preferred Stock, voting
together as a single class.
SECOND: The Series C Preferred Stock has been classified by the Board of
Directors under the authority contained in Article 4, Section 4.1 of the
Charter.
THIRD: The undersigned each acknowledges these Articles Supplementary to
be the act of the Corporation and further, as to all matters or facts required
to be verified under oath, each of the undersigned acknowledges that to the best
of his acknowledge, information and belief, these matters and facts are true in
all material respects and that this statement is made under the penalties of
perjury.
A-5
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary
to be signed in its name and on its behalf by its President and attested to by
its Secretary this __th day of March, 1998.
MERIDIAN INDUSTRIAL TRUST, INC.
By:
---------------------------------
Milton K. Reeder,
President
By:
---------------------------------
Robert A. Dobbin,
Secretary
<PAGE>
EXHIBIT B
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER MARCH 12, 2008 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001
PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY ACQUIRING PERSONS (AS DEFINED IN SECTION 1 OF THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME
NULL AND VOID.
Right Certificate
MERIDIAN INDUSTRIAL TRUST, INC.
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 March 12, 1998 (the "Rights Agreement"),
between MERIDIAN INDUSTRIAL TRUST, INC., a Maryland corporation (the "Company"),
and First Chicago Trust Company of New York (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 p.m., Eastern time, on March
12, 2008, at the Stock Transfer Office of the Rights Agent (or at the office of
its successor as Rights Agent), one one-thousandth (1/1000) of a fully paid
non-assessable share of Series C Junior Participating Preferred Stock, par value
$0.001 per share (the "Preferred Shares"), of the Company, at a purchase price
of $100.00 per one one-thousandth (1/1000) of a Preferred Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of one one-thousandths of a Preferred Share
which may be purchased upon exercise hereof) set forth above, and the Purchase
Price set forth above, are the number and Purchase Price as of March 12, 1998,
based on the Preferred Shares as constituted at such date. As provided in the
Rights Agreement, the Purchase Price and the number of one one-thousandths of a
Preferred Share which may be purchased upon the exercise of the Rights evidenced
by this Right Certificate are subject to modification and adjustment upon that
happening of certain events.
This Right 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
<PAGE>
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
Right Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the Stock Transfer Office of the Rights
Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the Stock Transfer Office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at a redemption price of
$.001 per Right or (ii) may be exchanged by the Company in whole or in part for
Preferred Shares or shares of the Company's common stock, par value $0.001 per
share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-thousandth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be entitled to any benefit under the
Rights Agreement or be valid or obligatory for any purpose until it shall have
been authenticated by the Right Agent.
B-2
<PAGE>
WITNESS the facsimile signatures of the proper officers of the Company and
its corporate seal.
Dated as of , .
------------------- ----
ATTEST: MERIDIAN INDUSTRIAL TRUST, INC.
[SEAL]
By:
- ----------------------------------- -------------------------------------
Secretary Chairman
Authentication:
This is one of the Right Certificates referred to in the within-mentioned Rights
Agreement.
First Chicago Trust Company of New York, as Rights Agent
By:
--------------------------------
Authorized Signature
B-3
<PAGE>
[Form of Reverse Side of Right Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate)
FOR VALUE RECEIVED, _______________________________ hereby sells, assigns
and transfers unto
-------------------------------------------------------------
- ------------------------------------
(Please print name and address of transferee)
- ------------------------------------------
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _____________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated as of , .
------------------- ----
-----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent n
the United States.
- --------------------------------------------------------------------------------
[To be executed if statement is correct]
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
-----------------------------------
Signature
- --------------------------------------------------------------------------------
B-4
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
TO MERIDIAN INDUSTRIAL TRUST, INC.:
The undersigned hereby irrevocably elects to exercise _____________ Rights
represented by this Right Certificate to purchase the Preferred Shares (or other
securities) issuable upon the exercise of such Rights and requests that
certificates for such Preferred Shares (or other securities) be issued in the
name of:
Please insert social security
or other identifying number:
- -------------------------------
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number:
- -------------------------------
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
Dated as of , .
------------------- ----
-----------------------------------
Signature
B-5
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
[To be executed if statement is correct]
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
-----------------------------------
Signature
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NOTICE
The signature in the foregoing Form of Assignment or Form of Election to
Purchase must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to Purchase, as the case may be, is not completed, the
Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
B-6
<PAGE>
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On February 27, 1998, the Board of Directors of Meridian Industrial Trust, Inc.
(the "Company") authorized the issuance of one preferred share purchase right (a
"Right") with respect to each outstanding share of common stock, $.001 par value
(the "Common Shares"), of the Company. The rights were issued on March 16, 1998
to the holders of record of Common Shares on that date. Each Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series C Junior Participating Preferred Stock, $.001 par value (the "Preferred
Shares"), of the Company at a price of $100 per one one-thousandth of a
Preferred Share (the "Purchase Price"), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement (the "Rights
Agreement") dated as of March 12, 1998, between the Company and First Chicago
Trust Company of New York, as Rights Agent (the "Rights Agent").
DETACHMENT OF RIGHTS; EXERCISE. Initially, the Rights will attach to all Common
Share certificates representing outstanding shares and all Common Shares held in
book-entry form and no separate Right Certificate will be distributed. The
Rights will separate from the Common Shares and a Distribution Date will occur
upon the earlier of (i) 10 business days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person") has
acquired beneficial ownership of 15% or more of the outstanding Voting Shares
(as defined in the Rights Agreement) of the Company, subject to certain
exceptions with respect to stockholders that owned more than 15% of the
Company's outstanding Voting Shares on the date the Rights Agreement was adopted
(the "Ownership Limit"), or (ii) 10 business days following the commencement or
announcement of an intention to commence a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group in excess of the Ownership Limit (unless the Board of Directors has
elected to extend such date).
Until the Distribution Date (or earlier redemption or expiration of the Rights)
(i) with respect to Common Shares that are held in certificated form, the Rights
will be evidenced, with respect to any of the Common Shares outstanding on March
16, 1998, by the certificates representing such Common Shares with a copy of
this Summary of Rights attached thereto, (ii) with respect to Common Shares that
are held in book-entry form, the Rights will be evidenced by a notation in the
records of the Rights Agent (which also serves as the transfer agent for the
Common Shares), (iii) the Rights will be transferred with and only with the
Common Shares, (iv) new Common Share certificates issued after March 16, 1998,
upon transfer or new issuance of the Common Shares will contain a notation
incorporating the Rights Agreement by reference, and (v) the surrender for
transfer of any certificates for Common Shares outstanding as of March 16, 1998,
even without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
Common Shares represented by such certificate.
As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (the "Right Certificates") will be mailed to holders of
record of the Common Shares as of the close
<PAGE>
of business on the Distribution Date and such separate Right Certificates alone
will thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on March 12, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or the Rights are earlier redeemed or exchanged by
the Company as described below.
If a person or group were to acquire Voting Shares of the Company in excess of
the Ownership Limit, each Right then outstanding (other than Rights beneficially
owned by the acquiring person which would become null and void) would become a
right to buy that number of Common Shares (or under certain circumstances, the
equivalent number of one one-thousandths of a Preferred Share) that at the time
of such acquisition would have a market value of two times the Purchase Price of
the Right.
If the Company were acquired in a merger or other business combination
transaction or more than 50% of its consolidated assets or earning power were
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have a market
value of two times the Purchase Price of the Right.
PREFERRED SHARES. The dividend and liquidation rights, and the non-redemption
feature, of the Preferred Shares are designed so that the value of one
one-thousandth of a Preferred Share purchasable upon exercise of each Right will
approximate the value of one Common Share. The Preferred Shares issuable upon
exercise of the Rights will be non-redeemable and rank junior to all other
series of the Company's preferred stock. Each whole Preferred Share will be
entitled to receive a quarterly preferential dividend in an amount per share
equal to the greater of (i) $1.00 in cash, or (ii) in the aggregate, 1,000 times
the dividend declared on the Common Shares. In the event of liquidation, the
holders of the Preferred Shares will be entitled to receive a preferential
liquidation payment equal to the greater of (i) $1,000 per share, or (ii) in the
aggregate, 1,000 times the payment made on the Common Shares. In the event of
any merger, consolidation or other transaction in which Common Shares are
exchanged for or changed into other stock or securities, cash or other property,
each whole Preferred Share will be entitled to receive 1,000 times the amount
received per Common Share. Each whole Preferred Share shall be entitled to
1,000 votes on all matters submitted to a vote of the stockholders of the
Company, and Preferred Shares shall generally vote together as one class with
the Common Stock and any other capital stock on all matters submitted to a vote
of stockholders of the Company.
The offer and sale of the Preferred Shares issuable upon exercise of the Rights
will be registered with the Securities and Exchange Commission and such
registration will not be effective until the Rights become exercisable.
ANTIDILUTION AND OTHER ADJUSTMENTS. The number of one one-thousandths of a
Preferred Share or other securities or property issuable upon exercise of the
Rights, and the Purchase Price payable, are subject to customary adjustments
from time to time to prevent dilution.
2
<PAGE>
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
EXCHANGE OPTION. At any time after the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of Voting Shares of the
Company in excess of the Ownership Limit and before the acquisition by a person
or group of 50% or more of the outstanding Voting Shares of the Company, the
Board of Directors may, at its option, issue Common Shares in mandatory
redemption of, and in exchange for, all or part of the then outstanding and
exercisable Rights (other than Rights owned by such person or group which would
become null and void) at an exchange ratio of one Common Share (or one
one-thousandth of a Preferred Share) for each two Common Shares for which each
Right is then exercisable, subject to adjustment.
REDEMPTION OF RIGHTS. At any time prior to the first public announcement that a
person or group has become the beneficial owner of Voting Shares in excess of
the Ownership Limit, the Board of Directors of the Company (including at least a
majority of the Continuing Directors) may redeem all but not less than all the
then outstanding Rights at a price of $0.001 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
NO RIGHTS AS STOCKHOLDER. Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
AMENDMENT OF RIGHTS. The terms of the Rights may be amended by the Board of
Directors of the Company (including at least a majority of the Continuing
Directors) without the consent of the holders of the Rights, including an
amendment to extend the Final Expiration Date, and, provided a Distribution Date
has not occurred, to extend the period during which the Rights may be redeemed,
except that after the first public announcement that a person or group has
become the beneficial owner of Voting Shares in excess of the Ownership Limit,
no such amendment may materially and adversely affect the interests of the
holders of the Rights.
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 HEREBY
INCORPORATED HEREIN BY REFERENCE.
A copy of the Rights Agreement has been filed with the Securities and Exchange
Commission as an Exhibit to a Registration Statement on Form 8-A dated March 16,
1998. A copy of the Rights Agreement is available free of charge from the
Company.
3
<PAGE>
Legend for Common Stock Certificates
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement between Meridian Industrial Trust, Inc. (the
"Company") and First Chicago Trust Company of New York, dated as of March 12,
1998 (the "Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal executive offices
of 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 without charge after receipt of
a written request therefor. As described in the Rights Agreement, Rights issued
to or acquired by any Acquiring Person or any Affiliate or Associate thereof
(each as defined in the Rights Agreement) shall, under certain circumstances,
become null and void.
