Common use of Trustees; Section 14(f) Clause in Contracts

Trustees; Section 14(f). (a) Effective upon Subsidiary’s purchase of Shares pursuant to the Offer, Parent shall be entitled to designate such number of trustees as determined by Parent, rounded up to the next whole number, for election or appointment to the board of trustees of the Company as will give Parent representation on the board of trustees of the Company equal to the product of (i) the total number of trustees on the board of trustees of the Company (giving effect to the increase in the size of such board pursuant to this Section 1.4) and (ii) a fraction equal to the number of Shares beneficially owned by Subsidiary and Parent (including Shares so accepted for payment) divided by the number of Shares then outstanding. In furtherance thereof, upon request of Parent, the Company shall take all action reasonably requested by Parent to cause such designees of Parent and Subsidiary to be so elected or appointed at such time, including increasing the size of the board and seeking resignations of incumbent trustees. At such time, the Company shall, if reasonably requested by Parent, cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company’s board of trustees of (i) each committee of the Company’s board of trustees; (ii) each board of directors (or similar body) of each subsidiary of the Company; and (iii) each committee (or similar body) of each such board, in each case only to the extent permitted by the rules of The Nasdaq National Market (“Nasdaq“). Notwithstanding the foregoing, effective upon Subsidiary’s purchase of Shares pursuant to the Offer, and prior to the time that any designee of Parent becomes a trustee on the Company’s board of trustees, the Company shall, if requested by Parent, permit up to three individuals designated by Parent (the “Parent Observers“) to attend and observe all meetings of the Company’s board of trustees or any committee of the Company’s board of trustees, subject to a Parent Observer’s execution of a reasonable confidentiality agreement regarding confidential information of the Company. The Company shall give the Parent Observers notice of all such meetings at the same time notice is provided or delivered to members of the Company’s board of trustees. Any materials that are sent to the Company’s trustees prior to a meeting of the Company’s board of trustees shall be sent simultaneously by the Company to the Parent Observers. The Parent Observers shall have no right to vote or exercise any other rights of a trustee at any meeting attended pursuant to this Section 1.4(a). (b) The Company’s obligations to appoint Parent’s designees to the Company’s board of trustees shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and trustees and Parent’s designees, as Section 14(f) and Rule 14f-1 of the Exchange Act require in order to fulfill its obligations under this Section, so long as Parent shall have provided to the Company on a timely basis the information with respect to Parent and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1 of the Exchange Act. (c) Notwithstanding the foregoing, (i) the Company shall use commercially reasonable efforts to ensure that, if Parent’s designees are elected to the board of trustees of the Company, such board of trustees shall have, at all times prior to the Effective Time, at least two trustees who are trustees on the date of this Agreement and who are not officers, employees or affiliates of the Company, Parent or any of their respective subsidiaries (it being understood that for purposes of this sentence, a trustee or director of the Company or Parent shall not be deemed an affiliate of the Company solely as a result of his or her status as a trustee or director of the Company or Parent) and who are “independent directors” as defined in the rules of Nasdaq (the “Independent Trustees“); (ii) if the number of Independent Trustees shall be reduced below two for any reason whatsoever, the remaining Independent Trustee may designate a person to fill such vacancy who is not an officer, employee or affiliate of the Company, Parent, or any of their respective subsidiaries and such person shall be deemed to be an Independent Trustee for purposes of this Agreement; and (iii) if no Independent Trustees then remain, the other trustees may designate two persons to fill such vacancies who shall not be officers, employees or affiliates of the Company, Parent or any of their respective subsidiaries, and such persons shall be deemed to be Independent Trustees for purposes of this Agreement. (d) Notwithstanding anything in this Agreement to the contrary, during the period after election of trustees designated by Parent pursuant to this Section 1.4 but prior to the Effective Time, the Board of Trustees shall delegate to a committee of the Board of Trustees comprised solely of the Independent Trustees (the “Independent Committee“) the sole responsibility for (i) any amendment or any termination of this Agreement by the Company; (ii) any extension of time for performance of any of the obligations of Parent or Subsidiary pursuant to this Agreement for which the Company’s consent or approval is required; (iii) the exercise or waiver of any of the Company’s rights or remedies hereunder; (iv) any amendment to the Company’s Declaration of Trust or Bylaws; and (v) any waiver of compliance with any covenant of Parent or Subsidiary or any condition to any obligation of the Company or of any of the Company’s rights under this Agreement. Any action of the Independent Committee with respect to the above matters in the preceding sentence shall be deemed to constitute the action of the full board of trustees of the Company to approve the actions contemplated hereby and no other action on the part of the Company, including any action by any other trustee of the Company shall be required for such authorization. The Independent Committee shall have the authority to retain one separate counsel at the reasonable expense of the Company.

Trustees; Section 14(f). (a) Effective upon Subsidiary’s purchase of Shares pursuant to the Offer, Parent shall be entitled to designate such number of trustees as determined by Parent, rounded up to the next whole number, for election or appointment to the board of trustees of the Company as will give Parent representation on the board of trustees of the Company equal to the product of (i) the total number of trustees on the board of trustees of the Company (giving effect to the increase in the size of such board pursuant to this Section 1.4) and (ii) a fraction equal to the number of Shares beneficially owned by Subsidiary and Parent (including Shares so accepted for payment) divided by the number of Shares then outstanding. In furtherance thereof, upon request of Parent, the Company shall take all action reasonably requested by Parent to cause such designees of Parent and Subsidiary to be so elected or appointed at such time, including increasing the size of the board and seeking resignations of incumbent trustees. At such time, the Company shall, if reasonably requested by Parent, cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company’s board of trustees of (i) each committee of the Company’s board of trustees; (ii) each board of directors (or similar body) of each subsidiary of the Company; and (iii) each committee (or similar body) of each such board, in each case only to the extent permitted by the rules of The Nasdaq National Market (“Nasdaq“”). Notwithstanding the foregoing, effective upon Subsidiary’s purchase of Shares pursuant to the Offer, and prior to the time that any designee of Parent becomes a trustee on the Company’s board of trustees, the Company shall, if requested by Parent, permit up to three individuals designated by Parent (the “Parent Observers“”) to attend and observe all meetings of the Company’s board of trustees or any committee of the Company’s board of trustees, subject to a Parent Observer’s execution of a reasonable confidentiality agreement regarding confidential information of the Company. The Company shall give the Parent Observers notice of all such meetings at the same time notice is provided or delivered to members of the Company’s board of trustees. Any materials that are sent to the Company’s trustees prior to a meeting of the Company’s board of trustees shall be sent simultaneously by the Company to the Parent Observers. The Parent Observers shall have no right to vote or exercise any other rights of a trustee at any meeting attended pursuant to this Section 1.4(a). (b) The Company’s obligations to appoint Parent’s designees to the Company’s board of trustees shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and trustees and Parent’s designees, as Section 14(f) and Rule 14f-1 of the Exchange Act require in order to fulfill its obligations under this Section, so long as Parent shall have provided to the Company on a timely basis the information with respect to Parent and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1 of the Exchange Act. (c) Notwithstanding the foregoing, (i) the Company shall use commercially reasonable efforts to ensure that, if Parent’s designees are elected to the board of trustees of the Company, such board of trustees shall have, at all times prior to the Effective Time, at least two trustees who are trustees on the date of this Agreement and who are not officers, employees or affiliates of the Company, Parent or any of their respective subsidiaries (it being understood that for purposes of this sentence, a trustee or director of the Company or Parent shall not be deemed an affiliate of the Company solely as a result of his or her status as a trustee or director of the Company or Parent) and who are “independent directors” as defined in the rules of Nasdaq (the “Independent Trustees“”); (ii) if the number of Independent Trustees shall be reduced below two for any reason whatsoever, the remaining Independent Trustee may designate a person to fill such vacancy who is not an officer, employee or affiliate of the Company, Parent, or any of their respective subsidiaries and such person shall be deemed to be an Independent Trustee for purposes of this Agreement; and (iii) if no Independent Trustees then remain, the other trustees may designate two persons to fill such vacancies who shall not be officersofficers , employees or affiliates of the Company, Parent or any of their respective subsidiaries, and such persons shall be deemed to be Independent Trustees for purposes of this Agreement. (d) Notwithstanding anything in this Agreement to the contrary, during the period after election of trustees designated by Parent pursuant to this Section 1.4 but prior to the Effective Time, the Board of Trustees shall delegate to a committee of the Board of Trustees comprised solely of the Independent Trustees (the “Independent Committee“”) the sole responsibility for (i) any amendment or any termination of this Agreement by the Company; (ii) any extension of time for performance of any of the obligations of Parent or Subsidiary pursuant to this Agreement for which the Company’s consent or approval is required; (iii) the exercise or waiver of any of the Company’s rights or remedies hereunder; (iv) any amendment to the Company’s Declaration of Trust or Bylaws; and (v) any waiver of compliance with any covenant of Parent or Subsidiary or any condition to any obligation of the Company or of any of the Company’s rights under this Agreement. Any action of the Independent Committee with respect to the above matters in the preceding sentence shall be deemed to constitute the action of the full board of trustees of the Company to approve the actions contemplated hereby and no other action on the part of the Company, including any action by any other trustee of the Company shall be required for such authorization. The Independent Committee shall have the authority to retain one separate counsel at the reasonable expense of the Company.